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ELCDismissedApplication dated 21 October 2020· [2021] KEELC 1801 (KLR)

Kiprotich Korir & another v Shiyotor Holdings Limited [2021] KEELC 1801 (KLR)

Environment and Land Court
30 September 2021
4,902 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed an attempt to revive a land suit, holding that a five-year unexplained delay after a plaintiff's death could not be excused.

What this practically means

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Executive summary

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The legal representatives of the deceased original 2nd plaintiff applied by notice of motion dated 21 October 2020 for review of the ruling of 10 November 2017 in which Omollo J dismissed the plaintiffs' land suit for want of prosecution and found that the 2nd plaintiff's suit had abated following his death on 3 November 2015 without substitution within one year. The applicants, administrators of the estate granted letters of administration on 13 February 2020, sought reinstatement of the suit, substitution out of time, and an order that the suit proceed to hearing, contending that the 2017 ruling was per incuriam and that their delay was excusable due to advocate misconduct, family disputes among 20 siblings, and the Covid-19 pandemic. The defendant opposed, citing the five-year delay, prior perjured affidavits, and absence of any error in the 2017 ruling. The court held that per incuriam denotes a decision failing to apply a relevant statute or binding precedent, and the applicants identified none; the 2017 ruling correctly applied Order 17 and Order 24 Rule 3, abatement having occurred by operation of law. On revival under Order 24 Rule 7(2), the court held that sufficient cause demands a genuine, well-explained and excusable reason excluding indolence; the applicants offered no evidence of family disputes, and even eight months' delay after the grant was unexplained, with the overriding objective of expeditious disposal weighing against revival. The application was dismissed with costs.

Key legal issues

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01

Whether the ruling of 10 November 2017 was per incuriam and thus reviewable

Holding

The ruling was not per incuriam; it correctly applied Order 17 on dismissal for want of prosecution and Order 24 Rule 3 on abatement, and no error apparent on the face of the record was demonstrated.

Reasoning

The court defined per incuriam as a decision failing to apply a relevant statutory provision or ignoring binding precedent. The applicants pointed to no provision or precedent ignored. The 2nd plaintiff died on 3 November 2015; by the time of the dismissal application more than a year had lapsed without substitution, so abatement had occurred by operation of law and dismissal for inactivity was proper.

p. 4
02

Whether the applicants demonstrated sufficient cause to revive the abated suit and be substituted

Holding

They did not; the delay of close to five years since death, and eight months after obtaining letters of administration, was poorly explained and unsupported by evidence.

Reasoning

The court held sufficient cause must be a good, genuine, well-explained and excusable reason excluding mere indolence, balanced against prejudice to the defendant. The applicants blamed their advocate and claimed family disputes among 20 siblings, but produced no evidence of the disputes. Reliance on Covid-19 failed as court business continued, and the eight-month post-grant delay was unexplained. The overriding objective of expeditious resolution weighed against revival.

p. 5

Legal principles established

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  • A suit abates by operation of law under Order 24 Rule 3(2) of the Civil Procedure Rules where no application for substitution of a deceased plaintiff is made within one year of death
  • "Per incuriam" means a decision that fails to apply a relevant statutory provision or ignores a binding precedent; a mere allegation without pointing to the ignored provision or precedent fails
  • "Sufficient cause" to revive an abated suit must be a good and genuine, well explained and excusable reason that rules out mere indolence and does not overly prejudice the defendant
  • A party asserting a factual basis for excusing delay (such as family disputes) bears the burden of adducing evidence of it

Court orders

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  1. 1.The prayer for review of the order of 10 November 2017 dismissing the suit for want of prosecution is dismissed
  2. 2.The application dated 21 October 2020 is dismissed in its entirety with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure RulesOrder 24 Rule 3
  • Civil Procedure RulesOrder 24 Rule 7(2)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 6

Cases cited (2)

  • Said Sweilem Gheitham Saanum vs Commissioner of Lands & 5 Others
    (2015) eKLR
  • Anthony Kaburi Kario & 2 Others v Ragati Tea Factory Company Limited & 10 Others
    [2014] eKLR
Jurisdiction invoked
Review jurisdiction under Order 45 Rule 1 of the Civil Procedure Rules and revival of abated suit under Order 24 Rule 7(2) of the Civil Procedure Rules

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, "Kiprotich Korir & another v Shiyotor Holdings Limited [2021] KEELC 1801 (KLR)", Case Analysis (2021). Application dated 21 October 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1801/eng@2021-09-30

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