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ELCDismissedNot stated in the excerpt· [2021] KEELC 4653 (KLR)

Joseph Makau Ndambuki v Benedetta Ndulu Ndeto & another [2021] KEELC 4653 (KLR)

Environment and Land Court of Kenya
26 January 2021
CMC.G. Mbogo
2,508 words in judgment
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The bottom line

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The Environment and Land Court refused to reinstate a land suit dismissed for want of prosecution, ruling the owner's two-year delay was inexcusable.

What this practically means

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Executive summary

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The Plaintiff, Joseph Makau Ndambuki, moved the court by Notice of Motion dated 24th July 2020 seeking review and setting aside of an order of 28th February 2018 dismissing his 2010 land suit for want of prosecution, and reinstatement of the suit. He blamed his former advocates for the dismissal, alleging a holding counsel misunderstood the hearing date, and attributed the delay in moving the court to illness, supported by prescriptions and pharmacy receipts. The 2nd Defendant opposed, citing the Plaintiff's and his advocates' serial non-attendance at pre-trial, mention and hearing, inordinate delay of over two years in filing the application, and asserted the Plaintiff was indolent; he sought throw-away costs of Kshs. 30,000/-. Both sides filed written submissions, the Plaintiff relying on Shah v Mbogo, Ivita v Kyumbu and related authorities on setting aside dismissals; the Defendant relying on Diamond Trust Bank Kenya Ltd. The court held the medical documents did not disclose the nature of the illness or prove disorientation or memory loss, and the illness claim remained evidence from the bar. It found the delay inordinate and unexplained, held that the litigant had an obligation to seek periodic updates from his advocates, and that any grievance lay in compensation against the former advocate. Noting that no affidavit of service was filed against the 1st Defendant, evidencing casual prosecution, the court dismissed the application with costs to the 2nd Defendant.

Key legal issues

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01

Whether inordinate and unexplained delay in seeking reinstatement of a dismissed suit is excusable

Holding

The delay of over two years was inordinate and not explained; equity does not aid the indolent

Reasoning

The suit was dismissed on 28th February 2018 but the application was not filed until 24th July 2020. The medical documents annexed did not disclose the nature of the illness or prove disorientation and memory loss, so the claimed illness remained evidence from the bar and did not explain the delay.

p. 3
02

Whether a client should bear the consequences of an advocate's failure to attend court

Holding

While a party should not be blamed for an advocate's mistake, the litigant must remain vigilant and pursue updates from counsel; the suit belongs to the party, not the advocate

Reasoning

The court accepted the principle that mistakes of counsel should not ordinarily be visited on the client, but held that the plaintiff had a duty to seek periodic status updates. Any grievance against the former advocate should be pursued as a compensation claim, not by reinstating a long-neglected suit.

p. 3

Legal principles established

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  • A litigant bears an obligation to follow up the status of his suit with his advocate and cannot rely solely on the advocate's failure to inform him

Court orders

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  1. 1.The Notice of Motion dated 24th July 2020 seeking review and reinstatement of the suit is dismissed
  2. 2.Costs of the application awarded to the 2nd Defendant/Respondent

Authorities

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Cases cited (5)

  • Abdinoor Shurie v Halima Bundid
    [2020] eKLR
  • Shah v Mbogo
    [1967] EA 117
  • Ivita v Kyumbu
    [1984] KLR 44
  • Gladys Njeri Kirugumi v Lengata Development Co Ltd & Another
    [2016] eKLR
  • Diamond Trust Bank Kenya Ltd
    Nbi HCC No. 1093 of 2000
Jurisdiction invoked
Inherent power of the court to review/set aside its own orders dismissing a suit for want of prosecution

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 Makau Ndambuki v Benedetta Ndulu Ndeto & another [2021] KEELC 4653 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4653/eng@2021-01-26

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