Kiprotich Korir & another v Shiyotor Holdings Limited [2021] KEELC 1801 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ruling of 10 November 2017 was per incuriam and thus reviewable
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.
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.
Whether the applicants demonstrated sufficient cause to revive the abated suit and be substituted
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.
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.
Legal principles established
#- 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
#- 1.The prayer for review of the order of 10 November 2017 dismissing the suit for want of prosecution is dismissed
- 2.The application dated 21 October 2020 is dismissed in its entirety with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.