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ELCDismissedNotice of Motion dated 2nd December, 2019· [2021] KEELC 3658 (KLR)

Republic v Special District Commissioner Kitui; Ex parte Mulei Mulil; Mutave Kyaitha (Interested Party) [2021] KEELC 3658 (KLR)

Environment and Land Court
16 April 2021
OAO. A. Angote
907 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to revive a 13-year-old forgotten land case, showing that unexplained delay can permanently end your lawsuit.

What this practically means

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Executive summary

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The Ex-parte Applicant moved the court by Notice of Motion dated 2nd December, 2019 seeking review and setting aside of orders dismissing his judicial review suit for want of prosecution, and reinstatement of the suit. The underlying matter was a judicial review application filed in the High Court in April 2005 seeking leave to apply for certiorari and mandamus against a ruling of the District Commissioner, Kitui, in an appeal to the Minister (Land Case No. 423 of 1989). Leave was granted on 4th May, 2005 to operate as a stay, and the substantive motion for certiorari was filed on 19th May, 2005 to quash an undated judgment of the Special District Commissioner delivered on 31st December, 2004. The matter last appeared in court on 8th June, 2010 when it was stood over generally. A notice to show cause why the suit should not be dismissed for want of prosecution was served on the Applicant's court clerk on 22nd May, 2018; neither the Applicant nor his advocate attended court, and the suit was dismissed on 5th June, 2018. The Applicant argued that his advocate was never served, that the file could not be traced, and that Kemei J lacked jurisdiction because Article 162(2) of the Constitution vested land matters in the Environment and Land Court. The Interested Party opposed the application as frivolous, vexatious and an abuse of process. The court found no evidence of efforts to trace the file, held that service on the court clerk was valid and undisputed, and held that having failed to transfer the suit to the Environment and Land Court, the Applicant could not challenge the jurisdiction of the High Court, which had jurisdiction as at the date of dismissal. The application was disallowed with no order as to costs, and the suit stands dismissed.

Key legal issues

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01

Whether the dismissal for want of prosecution should be set aside

Holding

The application was disallowed; no valid reason was given for the over thirteen-year delay and no evidence of efforts to trace the allegedly missing file.

Reasoning

The court found the notice to show cause was served on the Applicant's court clerk on 22nd May, 2018 and was not denied by affidavit. The advocate exhibited no letter to the Deputy Registrar about the missing file. Without any explanation for the delay from 2005/2010 to 2018, the court had no option but to dismiss the suit.

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02

Whether Kemei J lacked jurisdiction under Article 162(2) of the Constitution

Holding

The jurisdictional challenge failed because the suit was filed in the High Court in 2005 and the Applicant never sought its transfer to the Environment and Land Court.

Reasoning

Article 162(2)(b) established the Environment and Land Court in 2012, but the Applicant took no steps to transfer the matter. Having left the suit in the High Court until 2018, he could not complain that the dismissing court lacked jurisdiction; the High Court had the requisite jurisdiction as at 5th June, 2018.

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03

Whether there was valid service of the notice to show cause

Holding

Service on the Ex-parte Applicant's court clerk was effective, and the clerk did not swear an affidavit denying service.

Reasoning

The notice to show cause was served on the Applicant's court clerk on 22nd May, 2018. The clerk did not deny service by affidavit, and neither the Applicant nor his advocate attended court on 5th June, 2018 when the matter was dismissed for want of prosecution.

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Legal principles established

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  • Where a litigant does not cause a pending suit to be transferred to the Environment and Land Court after its establishment, the High Court in which the suit lay retained jurisdiction to dismiss it for want of prosecution.
  • A court in whose registry a file lies dominant may dismiss an unprosecuted suit for want of prosecution where the plaintiff offers no explanation for the delay.

Court orders

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  1. 1.The Application dated 2nd December, 2019 is disallowed with no order as to costs
  2. 2.The suit stands dismissed as ordered by the court on 5th June, 2018

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2); Article 162(2)(b)
Jurisdiction invoked
Review/set aside of orders dismissing suit for want of prosecution; matter originally a judicial review suit filed in the High Court in 2005

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, "Republic v Special District Commissioner Kitui; Ex parte Mulei Mulil; Mutave Kyaitha (Interested Party) [2021] KEELC 3658 (KLR)", Case Analysis (2021). Notice of Motion dated 2nd December, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3658/eng@2021-04-16

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