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ELCDismissedBungoma Environment and Land Case (number not stated in judgment)· [2021] KEELC 4704 (KLR)

Shaiwaz Sadrudin Jiwa v Rajab Barasa Olemuteke & another [2021] KEELC 4704 (KLR)

Environment and Land Court
18 January 2021
BOBoaz N. Olao
1,430 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma land court refused to dismiss a stagnant case because a stay agreement paused the one-year clock, and dismissal is never automatic in Kenya.

What this practically means

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Executive summary

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The defendants, citing Order 17 Rule 2(3) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, moved by Notice of Motion dated 2nd June 2020 for dismissal of the plaintiff's suit (instituted 20th June 2018) for want of prosecution, alleging no step had been taken for over one year, the suit having last been in court on 4th April 2019. The plaintiff opposed through a replying affidavit sworn by counsel Omundi Bw'onchiri, explaining that on 14th November 2018 both counsel agreed the suit be stayed to await the ruling in Bungoma ELC No 52 of 2018, delivered on 27th May 2020, and that an appeal against that ruling had been preferred to the Court of Appeal. The court found a consent recorded on 14th November 2018 staying the proceedings, rejecting the defendants' submission that no consent existed on the file. It held that the one-year period under Order 17 Rule 2(1) could only run from 27th May 2020, making the application premature. The court further held that dismissal under Order 17 Rule 2(1) is discretionary ('may'), applying the Ivita v Kyumbu test: the applicant must show prolonged and inexcusable delay causing prejudice, such as loss of witnesses or evidence, none of which was alleged. The court also invoked Article 50 of the Constitution and the Sebei District Administration line of authority that denying a party a hearing should be a last resort. The application was dismissed with costs on 18th January 2021, delivery being by electronic mail under COVID-19 guidelines.

Key legal issues

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01

Commencement of the one-year period under Order 17 Rule 2(1)

Holding

The period could not run while the suit stood stayed by consent pending the ruling in Bungoma ELC No 52 of 2018; it started on 27th May 2020 when that ruling was delivered

Reasoning

The court found on the record a consent recorded on 14th November 2018 in the presence of both counsel staying the matter to await the ruling in ELC No 52 of 2018, delivered on 27th May 2020. Counting inactivity had therefore to start from that date, rendering an application filed on 2nd June 2020 premature.

p. 2
02

Whether dismissal for want of prosecution is mandatory upon one year of inactivity

Holding

No - Order 17 Rule 2(1) confers a discretion ('may'), and the Ivita test requires proof of prolonged and inexcusable delay causing prejudice

Reasoning

The court held the word 'may' shows dismissal is discretionary. Relying on Ivita v Kyumbu, the defendant must show the delay is prolonged and inexcusable and that justice cannot be done despite it, i.e. prejudice through lost evidence or witnesses. The defendants alleged no such prejudice. Article 50 of the Constitution favouring a fair hearing reinforces restraint.

p. 2

Legal principles established

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  • Where parties have by consent stayed proceedings pending another event, the one-year period under Order 17 Rule 2(1) runs only from the occurrence of that event
  • Dismissal of a suit under Order 17 Rule 2(1) is discretionary, not mandatory
  • A party seeking dismissal for want of prosecution must demonstrate prejudice - inability to mount a defence due to lost witnesses or evidence - not merely one year of inactivity

Court orders

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  1. 1.The defendants' Notice of Motion dated 2nd June 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)-(4)
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 50

Cases cited (3)

  • IVITA .V. KYUMBU
    1984 KLR 441
  • SEBEI DISTRICT ADMINISTRATION .V. GASYALI & OTHERS
    1968 E.A 300
  • JAMNADAS .V. SODHA HEMRAJ
    1952 7 U.L.R 11
Jurisdiction invoked
Order 17 Rule 2(3) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shaiwaz Sadrudin Jiwa v Rajab Barasa Olemuteke & another [2021] KEELC 4704 (KLR)", Case Analysis (2021). Bungoma Environment and Land Case (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4704/eng@2021-01-18

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