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ELCDismissedNot stated in judgment· [2021] KEELC 1682 (KLR)

Phoebe Wangui Gakui v Mohamed Ahmed Gabarye [2021] KEELC 1682 (KLR)

Environment and Land Court
6 October 2021
3,476 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to revive a land suit dismissed for inaction, confirming courts won't reward litigants who sleep on their cases.

What this practically means

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Executive summary

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The Plaintiff filed a Notice of Motion dated 4th August 2020 seeking to set aside the court's dismissal of her suit on 16th January 2019 and to have her draft amended plaint deemed duly filed. She argued that she fell ill, that her 30-day extension to file the amended plaint lapsed on 18th January 2019 and not 16th January 2019, and that the registry rejected her attempted filing within 72 hours of the mention date. The Defendant opposed, contending the suit, instituted in 2007, had been dismissed twice for want of prosecution, that the plaintiff was an indolent litigant who delayed over one and a half years in applying for reinstatement, and that the delay prejudiced him in this land matter. The court framed a single issue: whether the suit should be reinstated. Reviewing the suit's history, the court found the plaintiff had never been vigilant: the suit was first dismissed in 2012, reinstated with self-executing compliance orders which she breached, and dismissed again in 2019 in the presence of her counsel. Applying the Ivita v Kyumbu test, the court held the delay was prolonged and inexcusable. The miscalculation argument failed because the extension orders were issued on 26th November 2018, not 28th November 2018; the Covid-19 explanation was untenable as the pandemic post-dated the dismissal; and the advocate's in-court admission of lack of instructions contradicted the claim of a rejected filing. Emphasising Article 159(2)(b) on expeditious justice, the court dismissed the application with costs to the Defendant and marked the file closed.

Key legal issues

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01

Whether the suit dismissed on 16th January 2019 should be reinstated

Holding

Application dismissed; the plaintiff's prolonged, inexcusable delay since 2007, including failure to comply with successive court orders, weighed against reinstatement

Reasoning

The court traced the suit's history: instituted in 2007, dismissed in 2012, reinstated with self-executing compliance orders, dismissed again in 2019 for non-compliance. The plaintiff took over one and a half years to apply for reinstatement, blamed her advocates and Covid-19 without candour, and the delay prejudiced the defendant through faded memories and litigation costs. Article 159(2)(b) on expeditious justice reinforced refusal of the discretion.

p. 4
02

Whether the dismissal was premature because the 30-day extension lapsed on 18th January 2019, not 16th January 2019

Holding

Rejected; the plaintiff's calculation was based on the wrong date - the orders were issued on 26th November 2018, not 28th November 2018

Reasoning

The plaintiff computed the expiry of the 30-day extension from 28th November 2018, but the court's records showed the orders were issued on 26th November 2018. On the correct date, dismissal on 16th January 2019 was within the period. The miscalculation argument therefore failed.

p. 4
03

Whether Covid-19 explained the delay in filing the reinstatement application

Holding

No; the suit was dismissed on 16th January 2019, before the pandemic reached Kenya in March 2020

Reasoning

The plaintiff blamed the pandemic for her delay in reviving the suit, but the dismissal occurred in January 2019 and the pandemic only began in March 2020. The explanation was therefore unfounded, and the application filed nearly two years later remained unexplained.

p. 4
04

Whether the mistake of the plaintiff's former advocates should excuse non-compliance

Holding

No; prosecution of a suit is the litigant's responsibility, and the plaintiff and her advocate were not candid about the alleged rejected filing of the amended plaint

Reasoning

Relying on Mwangi Gachiengu v Mwaura Githuku, the court held a litigant cannot blame counsel where she goes to sleep on her suit. The claim that the amended plaint was rejected at the registry 72 hours before the mention date contradicted counsel's own statement in court on 16th January 2019 that non-compliance was due to lack of instructions.

p. 4

Legal principles established

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  • Responsibility to prosecute a suit rests on the litigant, not on counsel
  • The test for reinstatement after dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can nonetheless be done

Court orders

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  1. 1.The Notice of Motion application dated 4th August 2020 is dismissed with costs to the Defendant
  2. 2.The court file is marked as CLOSED

Authorities

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Legislation

  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 50 Rules 2 and 4
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50

Cases cited (16)

  • Mbogo vs Another and Shah
    EALR 1968
  • Philip Chemwolo & another vs Augustine Kubede
    (1982-1988) KAR 103
  • Belinda Murai & 9 others vs Amos Wainaina
    (1979) eKLR
  • D. Chantulal K. Vora & Co. Limited vs Kenya Revenue Authority
    (2017) eKLR
  • Mwangi S. Kimenyi vs Attorney General and Another
    [2014] eKLR
  • Ivita vs Kyumbu
    [1984] KLR 441
  • Gold Lida Limited vs NIC Bank Ltd & 2 other
    (2018) eKLR
  • Nahashon Mwangi vs Kenya Finance Bank (in liquidation)
    (2015) eKLR
  • James Kiplimo Rotich v Taprandich Chumo
    [2017] eKLR
  • Peter Kinyari Kihumba v Gladys Wanjiru Migwi & another
    [2006] eKLR
  • Fran Investments Limited vs G4S Security Services Limited
    [2015] eKLR
  • James Yanga Yeswa v Bob Morgan Services Limited
    [2019] eKLR
  • Birket v James
    [1978] AC 297
  • Kestem Company Ltd vs Ndala Shop Limited & 2 others
    [2018] eKLR
  • Mugwe v Kamau
    [2004] eKLR
  • Mwangi Gachiengu & 2 Others –Vs- Mwaura Githuku & Another
    (2019) eKLR
Jurisdiction invoked
Inherent discretion of the court to reinstate a suit dismissed for want of prosecution (Civil Procedure Act and Rules; application to set aside dismissal orders of 16 January 2019)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Phoebe Wangui Gakui v Mohamed Ahmed Gabarye [2021] KEELC 1682 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1682/eng@2021-10-06

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