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ELCDismissedNot stated in judgment· [2021] KEELC 3779 (KLR)

Joseph Ndirangu Munene v Peter Macharia Muriu & another [2021] KEELC 3779 (KLR)

Environment and Land Court
18 March 2021
LGL. GACHERU
2,298 words in judgment
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The bottom line

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A Kenyan court refused to reinstate a land suit dismissed for inaction, because the owner waited nearly a year and never explained the delay.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Environment and Land Court at Thika by Notice of Motion dated 16th November 2019 seeking to set aside the orders and decree of Lady Justice L. Mbugua made on 4th December 2018 dismissing his suit for want of prosecution, and to reinstate the suit. The suit concerned ownership of Plot No. 3128 within land parcel Ruiru West Block 1/Githunguri under ballot No. G3. The Applicant explained that his advocate was served with the Notice to Show Cause on 22nd November 2018 but had other matters fixed in Nairobi and Machakos, sent a new clerk who could not locate the Thika Environment and Land Court in time, and only learned of the dismissal in mid-2019 when serving a transfer application. The 2nd Defendant opposed, asserting ownership of the ballot G3 property and characterising the application as an abuse of process by an indolent litigant, noting the one-year delay. The court, L. Gacheru J, applied Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules and the authorities of Patel v E.A Cargo Handling Services Ltd, Wachira Karani v Bildad Wachira and Shah v Mbogo. It held that the reason for non-attendance was not satisfactorily explained, no reason was given for the failure to prosecute the suit for over a year, and the nearly one-year delay in filing the application was inordinate and unexplained. The court found the Plaintiff had not discharged his burden and that setting aside would not serve the interests of justice. The application was dismissed entirely with costs to the Respondents.

Key legal issues

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01

Whether sufficient reasons were given to warrant setting aside the dismissal of the suit for want of prosecution

Holding

No sufficient reasons were given; the reason for non-attendance and for the failure to prosecute for over a year were not satisfactorily explained, so the discretion was not exercised in the Plaintiff's favour

Reasoning

The Plaintiff's advocate claimed to have been held up in another matter in Machakos, but no attempt was made to demonstrate that he could not attend on 4th December 2018. The clerk who attended arrived after the suit had been dismissed, meaning the firm knew or ought to have known of the dismissal. Nothing was done between 4th December 2018 and 21st June 2019. The Plaintiff, having filed the suit, bore the burden of explaining the non-prosecution and failed to do so.

p. 3
02

Whether the inordinate delay in bringing the application defeated it

Holding

The delay of nearly a year, from dismissal on 4th December 2018 to the application of 16th November 2019, was unexplained and weighed against setting aside

Reasoning

The suit was dismissed on 4th December 2018 and the application was filed on 16th November 2019. The Plaintiff's advocate, through his clerk, knew or ought to have known of the dismissal, yet no explanation was given for what happened in the intervening period. Applying Shah v Mbogo, the discretion is not designed to assist a party who delays the cause of justice. The delay was therefore fatal to the application.

p. 3

Legal principles established

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  • The power to set aside an ex parte judgment or dismissal is discretionary and must be exercised on terms that are just, with the main concern being to do justice to the parties
  • An ex parte judgment is not a judgment on the merits, and where the interests of justice require that a defaulting party with sound reasons be heard, that party should be given a hearing
  • The discretion to set aside an ex parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the cause of justice

Court orders

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  1. 1.The Application dated 16th November 2019 is dismissed entirely with costs to the Respondents
  2. 2.It is so ordered

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (3)

  • Wachira Karani …Vs…Bildad Wachira
    (2016) eKLR
  • Patel….Vs….E.A Cargo Handling Services Ltd
    (1974) EA 75
  • Shah….Vs…Mbogo
    (1967) EA 166
Jurisdiction invoked
Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules (inherent discretionary power to set aside ex parte orders/dismissals)

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, "Joseph Ndirangu Munene v Peter Macharia Muriu & another [2021] KEELC 3779 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3779/eng@2021-03-18

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