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ELCDismissedNot stated in the judgment· [2021] KEELC 1051 (KLR)

Anne R. Wesonga v Chief Land Registrar Ministry of Lands & 3 others; Boniface Mwanzia Muindi (Interested Party) [2021] KEELC 1051 (KLR)

Environment and Land Court
10 November 2021
LMLucy N. Mbugua
1,568 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed an application seeking priority hearing of a case already dismissed, confirming you must first ask for reinstatement.

What this practically means

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Executive summary

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The Applicant moved the court by Notice of Motion dated 1st February 2021 seeking priority hearing of her judicial review application dated 27th May 2020, which sought mandamus compelling the Chief Land Registrar and the Registrar of Titles to cancel Certificates of Lease over the subject title. That substantive motion had been dismissed for want of prosecution on 15th December 2020 by Justice Eboso when neither the Applicant nor her advocate attended court. The Interested Party, Boniface Mwanzia, opposed, arguing the Applicant gave no reason for non-appearance, that no reinstatement was sought, and that the same dispute was pending in ELC No. 7 of 2020 (OS), making the application an abuse of process. The Applicant relied on Order 12 rule 7 of the Civil Procedure Rules and authorities urging courts to exercise care before dismissing suits. The court examined the record, confirmed the matter was before Justice Eboso on 15th December 2020, and found no good reason for the Applicant's non-appearance. It applied Ivita v Kyumba and Peter Kipkurui Chemoiwo, holding that reinstatement is discretionary and requires reasonable grounds for delay. Noting that the Applicant had not sought reinstatement of the dismissed motion and that her conduct showed disregard for court directions, the court found the application unmerited, dismissed it, and awarded costs to the interested party. Judgment delivered on 10th November 2021 by Lucy N. Mbugua, Judge.

Key legal issues

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01

Whether the dismissal of the application dated 27th May 2020 for want of prosecution should be set aside

Holding

The dismissal was proper; the Applicant offered no good reason for non-appearance on 15th December 2020 and the record showed the matter was indeed before Justice Eboso

Reasoning

The court examined the record of 15th December 2020 and found the matter was before Justice Eboso, the same judge who had given directions on 10th November 2020 in the presence of counsel for the Applicant. Neither the Applicant nor her advocate attended. Order 12 rules 3(1) and 7 permit dismissal and discretionary setting aside upon just terms, but no tangible reason for non-appearance was advanced. The Applicant also failed to seek reinstatement and only asked for priority listing of a non-existent application. Her overall conduct, including non-compliance with directions and late filing of submissions, showed disregard for court directions.

p. 2
02

Whether the application dated 1st February 2021 was merited

Holding

It was not merited and was dismissed with costs to the interested party

Reasoning

The application sought prioritization of the dismissed 27th May 2020 application rather than its reinstatement, leaving the court with nothing to grant. The Applicant's conduct, including failure to comply with service directions on 2nd February 2021, condemnation to adjournment fees, and late submissions filed after the 14-day deadline, demonstrated disregard for court directions. The Interested Party's objections that the substance of the dispute was already before the court in ELC No. 7 of 2020 (OS) and that judicial review was inappropriate further undermined the application.

p. 3

Legal principles established

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  • Reinstating suits dismissed for non-appearance is a discretionary function exercised on the basis of reasonable grounds for the delay
  • An application cannot be given priority for hearing where it has already been dismissed and no reinstatement is sought

Court orders

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  1. 1.The Notice of Motion dated 1st February 2021 is dismissed
  2. 2.Costs awarded to the interested party

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 12 rule 3(1)
  • Civil Procedure Rules, 2010Order 12 rule 7
  • Civil Procedure Rules, 2010Order 53 rule 3(1)

Cases cited (5)

  • Gideon Mose Onchwati v Kenya Oil Co. Ltd & another
    [2017] eKLR
  • John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation)
    [2015] eKLR
  • Peter Kipkurui Chemoiwo v Richard Chepsergon
    [2021] eKLR
  • Ivita –v– Kyumba
    [1984] KLR 441
  • Savings & Loan Kenya Ltd v Onyancha Bwomote
    [2014] eKLR
Jurisdiction invoked
Inherent jurisdiction and Order 12 rule 7 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anne R. Wesonga v Chief Land Registrar Ministry of Lands & 3 others; Boniface Mwanzia Muindi (Interested Party) [2021] KEELC 1051 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1051/eng@2021-11-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.