Milka Luka Ndunda v Lucas Munyao Ndunda & another [2021] KEELC 3239 (KLR)
The bottom line
#The court refused to reinstate a land suit dismissed for inaction, ruling that unexplained delays and unsupported claims of non-service will not be excused.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's advocates were served with the Notice to show cause
The court declined to entertain the claim of non-service because the advocates on whom the notice was served did not swear an affidavit disputing service.
The Plaintiff deponed that his advocates were never served with the Notice to show cause dated 8th November, 2018. However, the notice was addressed to the advocates themselves, and neither the advocates nor the Plaintiff filed an affidavit from the advocates disputing service on the law firm. In the absence of such a rebuttal, the court accepted that service had been effected and treated the argument of non-service as unsupported.
Whether the dismissal for want of prosecution should be set aside and the suit reinstated
The application for reinstatement was declined because the Plaintiff failed to explain the inactivity between June 2015 and November 2018 and made no effort to follow up the matter.
The record showed that the ruling in the earlier application had been pending since 26th June, 2015 after Kariuki J.'s transfer, but there was no letter or step by the Plaintiff or his advocates to seek a ruling date or further directions before the Environment and Land Court Judge. The Defendants' position that equity aids the vigilant, not the indolent, prevailed, and the dismissal of 29th November, 2018 was left intact.
Legal principles established
#- A party alleging non-service of a notice on its advocates must support the allegation with an affidavit sworn by those advocates; absent such an affidavit, the court will not entertain the argument of non-service.
- Litigants must exercise due diligence and follow up their matters to conclusion; unexplained inaction on a file for about two years disentitles a party to reinstatement of a suit dismissed for want of prosecution.
Court orders
#- 1.The Application dated 28th September, 2020 is dismissed with no order as to costs
- Jurisdiction invoked
- Not stated in the judgment; the Environment and Land Court dealing with reinstatement of its own dismissed suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Milka Luka Ndunda v Lucas Munyao Ndunda & another [2021] KEELC 3239 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3239/eng@2021-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.