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ELCAllowedNot stated in judgment· [2021] KEELC 1593 (KLR)

Mohamed Ali Issak v Garissa Maize Millers [2021] KEELC 1593 (KLR)

Environment and Land Court
1 October 2021
ECE.C. Cherono
2,053 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Garissa reinstated a land suit dismissed for want of prosecution, because less than one year had passed without any step in the case.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by Notice of Motion dated 12th April 2021 seeking reinstatement of his suit, which was dismissed on 22nd February 2021 for want of prosecution and non-attendance at a virtual mention. He attributed the failure to prosecute to his former advocate, who had since died of Covid-19 related complications, and to his own unfamiliarity with digital court processes, contending that an advocate's mistake should not be visited on a client. The Defendant opposed, pointing out that the suit had earlier been dismissed for want of prosecution in 2015 and reinstated in 2018, that the applicant had abused the court's leniency, and that the matter had been in court for eight years. The court examined Order 17 Rule 2 of the Civil Procedure Rules and the Ivita v Kyumbu test, and found the statutory threshold for dismissal unmet: substantial steps had been taken in 2020, and less than a year had elapsed between the last court appearance on 25/11/2020 and the dismissal on 22/2/2021. On discretion, guided by D.T. Dobie and Order 12 Rule 7, the court accepted the advocate's demise and the plaintiff's technological inexperience as credible reasons for non-attendance. It allowed the application, set aside the dismissal of 22/2/2021, reinstated the suit, directed compliance with the orders of 26/3/2020, and directed a further mention on a date to be agreed by the parties. Both advocates were absent at delivery.

Key legal issues

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01

Whether the suit was liable to dismissal for want of prosecution under Order 17 Rule 2

Holding

The dismissal was unsustainable because less than one year had elapsed since the last step in the suit; considerable steps had been taken in 2020.

Reasoning

The court traced the litigation history: the matter was in court on 25/11/2020 and dismissed on 22/2/2021. Order 17 Rule 2 requires that no application or step be taken for one year before dismissal. Even computing from the close of the parties' cases on 26/2/2020, the period fell four days short of one year. The threshold condition for dismissal was therefore not met.

p. 3
02

Whether the court should exercise discretion to set aside the dismissal for non-attendance

Holding

The plaintiff's non-attendance was excused: the demise of his former advocate and his inexperience in legal and technological matters were credible reasons.

Reasoning

The court treated the setting aside of dismissals as discretionary under Order 12 Rule 7, to be exercised in the interest of justice. It accepted that the plaintiff, a layman, reasonably relied on his advocate, who had since died of Covid-19 related complications, and that his unfamiliarity with virtual hearings explained his non-attendance. Guided by D.T. Dobie, the court held suits should not be summarily extinguished where a semblance of a cause of action exists.

p. 3

Legal principles established

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  • A suit should not be summarily dismissed unless it is hopeless and beyond redemption; a semblance of a cause of action should be allowed to go forward.
  • Under Order 17 Rule 2, dismissal for want of prosecution requires that no step has been taken for one year; here the one-year period had not lapsed.

Court orders

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  1. 1.The dismissal orders issued on 22/2/2021 are set aside
  2. 2.The suit is reinstated
  3. 3.Parties to comply with the Orders issued on 26/3/2020
  4. 4.The matter to be mentioned on a date to be agreed by the parties

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure RulesOrder 12 Rule 7
  • Constitution of KenyaProvision against undue regard to technicalities (as invoked by applicant)

Cases cited (6)

  • John Nahashon Mwangi versus Kenya Finance Bank Ltd
    [2015] e KLR
  • Ivita vs Kyumbu
    [1984] KLR 441
  • CMC Holdings Ltd v Nzioki
    [2004]
  • Phillip Chemwolo & Anor vs Augustine Kudebe
    (198288) KAR 103
  • Racheal Njango Mwangi (Suing as Personal Representative of the Estate of Mwangi Kabaiku) v Hannah Wanjiru Kiniti & another
    [2021] e KLR
  • D.T. Dobie & Co (K) Ltd – Vs – Joseph Mbaria Muchina
    CA 37 of 1978
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Order 12 Rule 7 of the Civil Procedure Rules to set aside dismissal of suit

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, "Mohamed Ali Issak v Garissa Maize Millers [2021] KEELC 1593 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1593/eng@2021-10-01

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