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ELCDismissedSuit No. 1315 of 2016 (reinstatement application, Notice of Motion dated 14th January 2021)· [2021] KEELC 2345 (KLR)
Peter Mwendwa Muthui v Marry Njeri Thitu & another [2021] KEELC 2345 (KLR)
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#What this practically means
#Executive summary
#This ruling disposes of a Notice of Motion dated 14th January 2021 by the plaintiff, Peter Mwendwa Muthui, seeking reinstatement of his suit (No. 1315 of 2016) which had been dismissed on 14th February 2019 for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules. The application, grounded on sections 3 and 3A of the Civil Procedure Act, Order 51 rule 1 of the Civil Procedure Rules and Article 159(d) of the Constitution, was unopposed. The plaintiff deponed that he was never served with the notice to show cause and that his suit, founded on a sale agreement dated 10th September 2011 for a purchase price of Kshs.4,200,000, had a high probability of success. The court perused the record and found that after directions issued on 9th November 2016 the plaintiff took no steps, going into a slumber that led to the dismissal. The court also noted it was undisputed that the plaintiff never paid the full purchase price, undermining his assertion of a high chance of success. Holding that the plaintiff had lost interest in the case and that reinstatement would not serve the interests of justice, the court dismissed the application with no orders as to costs. L. Komingoi, J, delivered the ruling in Nairobi on 22nd July 2021, with Mr. J. Ranah appearing for the plaintiff and no appearance for the defendants.
Key legal issues
#01
Whether the suit dismissed under Order 17 rule 2 of the Civil Procedure Rules should be reinstated
Holding
The application for reinstatement was without merit and was dismissed
Reasoning
The plaintiff claimed he was never served with the notice to show cause, but the court record showed that after directions of 9th November 2016 the plaintiff went into a slumber, prompting the dismissal. Further, although he asserted the suit had a high probability of success premised on a sale agreement of 10th September 2011 for Kshs.4,200,000, it was not disputed that he never paid the full purchase price, undermining his claim of high chances of success. Reinstatement would not serve the interests of justice.
p. 1
Legal principles established
#- A party whose inaction leads to dismissal for want of prosecution, and who cannot demonstrate a triable case, is not entitled to reinstatement in the interests of justice
Court orders
#- 1.The Notice of Motion dated 14th January 2021 seeking reinstatement of Suit No. 1315 of 2016 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act; Order 51 rule 1 of the Civil Procedure Rules; Article 159(d) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Mwendwa Muthui v Marry Njeri Thitu & another [2021] KEELC 2345 (KLR)", Case Analysis (2021). Suit No. 1315 of 2016 (reinstatement application, Notice of Motion dated 14th January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2345/eng@2021-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.