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ELCAllowedNot stated in judgment (application dated 20 January 2021)· [2021] KEELC 1332 (KLR)
Mwanahamisi Said Mwambodze & 3 others v Mohammed Harif Khan [2021] KEELC 1332 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The applicants sued by Originating Summons filed on 17 March 2010 claiming the parcel Kwale/Diani/185 by adverse possession, with an injunction application on which Ojwang J (as he then was) granted status quo on 18 March 2010. A response was filed on 29 June 2010, but the file lay dormant: the matter was stood over generally on 28 October 2010 for want of appearance by both sides, and was next mentioned on 9 April 2018 when no one appeared and Yano J directed parties to take a date in the registry. Due to the inactivity, a Notice to Show Cause issued on 12 October 2018 directed at Mwaniki Gitau & Company Advocates and Opulu & Company Advocates. When the show cause came before Matheka J on 8 November 2018 during a service week visit, no party appeared and the suit was dismissed for want of prosecution. The applicants then filed the application dated 20 January 2021 seeking reinstatement, unopposed by the respondent. Munyao Sila J found that Okanga & Company Advocates, who filed the suit, were the advocates on record when the notice issued and there was no evidence they were served; the only proof of service was on M/s Mwaniki Gitahi & Partners, a firm not on record. Service on the advocates on record was necessary before the dismissal could proceed. The court set aside the ruling of 8 November 2018 dismissing the suit and made no orders as to costs.
Key legal issues
#01
Service of the Notice to Show Cause on the advocates on record
Holding
The dismissal was irregular because the applicants' advocates on record, Okanga & Company Advocates, were never served with the Notice to Show Cause; service on a non-recorded firm (Mwaniki Gitahi & Partners) did not suffice.
Reasoning
The court traced the record: Okanga & Company Advocates filed the suit and were on record when the Notice to Show Cause issued on 12 October 2018. The only proof of service was on M/s Mwaniki Gitahi & Partners, a firm not on record. Without service, the applicants' advocates had no opportunity to show cause why the suit should not be dismissed, so the dismissal could not stand.
p. 2
Legal principles established
#- Before a suit may be dismissed for want of prosecution on a Notice to Show Cause, the advocates on record for the party must be served with the notice, failing which the dismissal is liable to be set aside.
Court orders
#- 1.The ruling/order of 8 November 2018 dismissing the applicants' suit for want of prosecution is set aside and the suit reinstated
- 2.No orders as to costs
- Jurisdiction invoked
- Inherent jurisdiction to set aside dismissal for want of prosecution following an ex parte dismissal without service of the Notice to Show Cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwanahamisi Said Mwambodze & 3 others v Mohammed Harif Khan [2021] KEELC 1332 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 20 January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1332/eng@2021-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.