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ELCDismissedNot stated in extract· [2021] KEELC 1664 (KLR)
Tisco Construction Limeted v Kenya Railways Corporation & another [2021] KEELC 1664 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#A Kenyan court refused to reinstate a land suit dismissed over a year earlier, ruling that long unexplained delay cannot be excused by Covid-19 or blame-shifting to advocates.
What this practically means
#Executive summary
#The Petitioner filed a Notice of Motion dated 8.6.2021 seeking suspension of taxation of Party and Party Bills of Costs, reinstatement of its suit dismissed on 13.2.2020, and deeming of its draft submissions as filed. The Petitioner's managing director, Zhang Yuan Xhiang, deponed that he was unaware of the 13.2.2020 hearing date, lost contact with his advocates during the Covid-19 containment measures, and that ongoing out-of-court settlement discussions with the 1st Respondent explained the inaction. Both Respondents opposed via grounds of opposition and affidavits, contending that the delay of over a year in filing the application was inordinate, that the hearing date was fixed by consent with the Petitioner represented, and that the Petitioner was roused only when served with a Bill of Costs. The court, citing Mwangi Kaimenyi v Attorney General (which adopts Ivita v Kyumbu) and Mwangi Gachiengu v Mwaura Githuku, held that reinstatement is a matter of justice turning on whether delay is prolonged and inexcusable and whether justice can still be done. On the record, the Petitioner was represented on 11.6.2019 and 16.10.2019, had been indulged once after failing to comply with directions, and ought to have known the 13.2.2020 date. The application filed one year and four months after dismissal evidenced inordinate, unexplained delay; Covid-19 and settlement negotiations did not excuse it, and a litigant cannot blame its advocate. The application was dismissed with costs to the Respondents.
Key legal issues
#01
Whether the dismissed suit should be reinstated
Holding
Application dismissed; the delay was inordinate and unexplained
Reasoning
The Petitioner was represented on prior dates and ought to have known the 13.2.2020 hearing date. After dismissal, no speedy move to mitigate followed - the application came one year and four months later. Blame shifted to Covid-19 and to the advocate was rejected; negotiations were unsubstantiated on the record.
p. 2
Legal principles established
#- Reinstatement of a dismissed suit is a matter of justice depending on the facts; the test is whether delay is prolonged and inexcusable and whether justice can still be done despite it
- A suit belongs to the litigant, not the advocate; a litigant cannot blame the advocate for non-prosecution where the litigant has gone to sleep
Court orders
#- 1.The application dated 8.6.2021 is dismissed with costs to the Respondents
- Jurisdiction invoked
- Inherent discretion to reinstate a dismissed suit (not expressly stated in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tisco Construction Limeted v Kenya Railways Corporation & another [2021] KEELC 1664 (KLR)", Case Analysis (2021). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1664/eng@2021-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.