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ELCPartially AllowedNot stated in the judgment (application dated 30.7.2020 and application dated 11.2.2021)· [2022] KEELC 337 (KLR)

Tabitha Nkatha v Solomon K Mutungi & 2 others [2022] KEELC 337 (KLR)

Environment and Land Court
6 April 2022
1,690 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a land suit dismissed without notice in 2015, but only protected the landowner with a six-month status quo order backed by Kshs. 1 million security.

What this practically means

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Executive summary

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By an application dated 30.7.2020, Tabitha Nkatha sought review, variation and setting aside of an order of 13.7.2015 dismissing her suit under Order 17 rule 2 of the Civil Procedure Rules for non-prosecution, contending that no notice to show cause was served and that the file could not be traced. The 1st respondent opposed, citing inordinate delay of five years and a subsequent eviction suit (CMM No. 46 of 2020) in which the applicant had filed a defence; the 3rd respondent claimed to be defunct following the Constitution of Kenya 2010 and raised a preliminary objection on jurisdiction. A second application dated 11.2.2021 sought an injunction against threatened demolition and eviction of the applicant's family home on suit property said to be worth Kshs. 10 million. The court framed three issues: reinstatement, injunction, and whether the 3rd respondent was properly enjoined. It found the dismissal premature since one year from the last appearance (19.1.2015) had not lapsed by 13.7.2015, and no served notice to show case was produced; the applicant was condemned unheard contrary to natural justice. Though guilty of laches, she suffered no irreversible prejudice since a similar suit was pending and costs could compensate the respondents. The preliminary objection on jurisdiction failed, the suit having been regularly transferred to the ELC. On the injunction, the court granted only status quo for six months, conditioned on an undertaking as to damages and Kshs. 1 million security within 14 days, with costs to the respondents.

Key legal issues

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01

Whether the suit should be reinstated after dismissal under Order 17 rule 2

Holding

Reinstated: the dismissal was premature (one year had not lapsed) and notice to show cause was not proved served; prejudice to respondents can be met by costs, especially as a similar suit is pending

Reasoning

The last appearance was 19.1.2015, so one year would only lapse on 19.1.2016, yet dismissal occurred on 13.7.2015. No extracted and served notice to show cause with a return of service was produced. The applicant was condemned unheard, contrary to natural justice. Although she was guilty of laches and indolence, the pendency of a similar eviction suit in the lower court where she has filed a defence means the respondents suffer no irreparable prejudice, compensable by costs.

p. 2
02

Jurisdiction of the ELC following transfer from the High Court

Holding

The preliminary objection on jurisdiction failed; the suit was regularly transferred to the ELC after the ELC Act 2011 came into operation

Reasoning

The court found the transfer from the High Court to the ELC was regular following the coming into operation of the ELC Act 2011, and accordingly dismissed the preliminary objection on jurisdiction. On the claim that the 3rd defendant (a defunct local authority) does not exist in law following the Constitution of Kenya 2010, the court held that no appropriate application to amend the suit to substitute the County Government of Meru had been made.

p. 3
03

Entitlement to an interim injunction

Holding

Giella-type threshold not satisfied for a full injunction; status quo ordered for 6 months, conditioned on undertaking as to damages and Kshs. 1 million security

Reasoning

Although the applicant cited the Nguruman criteria (prima facie case, irreparable harm, balance of convenience), the existence of a pending eviction suit, the applicant's possession, and her letter of allotment as against a certificate of title led the court to order only status quo for six months, conditional on an undertaking as to damages and security of Kshs. 1 million within 14 days.

p. 3

Legal principles established

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  • A suit dismissed before the expiry of the one-year period of non-prosecution under Order 17 rule 2 cannot be validly dismissed; and dismissal without served notice violates natural justice
  • In deciding whether to reinstate a suit the court considers sufficient cause for delay, prejudice to the opposite party, whether justice can still be met despite the delay, and whether prejudice can be met by costs

Court orders

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  1. 1.The order dismissing the suit on 13.7.2015 under Order 17 rule 2 Civil Procedure Rules is set aside and the suit is reinstated
  2. 2.Orders of status quo subsisting granted for a period of 6 months only
  3. 3.Applicant to file an undertaking as to damages and provide security equivalent to Kshs. 1 million within 14 days failing which the orders lapse
  4. 4.Costs to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 rule 2
  • Constitution of Kenya 2010Article 50(1)
  • ELC Actnull

Cases cited (20)

  • Pinnacle Projects Ltd vs PCEA Ngong Parish and Abor
    (2018)
  • Mina Achedid vs NBK
    (2020) eKLR
  • Nahashon Mwangi vs Kenya Finance Bank Ltd in liquidation
    (215) eKLR / (2015) eKLR
  • Mwangi S. Kaimenyi vs AG and another
    (2014) eKLR
  • Loita vs Kyumbu
    (1984) KLR 441
  • CMC Holdings Ltd vs Nzioki
    (2004) IKLR 173
  • Mbogo & another vs Shah
    EALR 19
  • Fran Investments Ltd vs G4S Security Services Ltd
    (2015) eKLR
  • Philip Chemwolo and another vs Augustine Kubede
    (1982-1988) KAR 103
  • Belinda Murai and others vs Amoi Wainaina
    (1998)
  • Joshua Kulei vs Republic and 9 others
    (2014) eKLR
  • NBK vs Nzunga Njau
    null
  • Jim Rongers Gitonga Njeru vs AlHusnain motors ltd and 2 others
    (2018) eKLR
  • Nilesh Premchand Mulji Shah and another t/a Ketan emporium vs M.D Popot & others
    (2016) eKLR
  • Argan Wekesa Okumu vs Dima College Ltd and 2 others
    (2015) eKLR
  • George Gatire Kibota vs George Kuria Mwaura & another
    (2017) eKLR
  • Nzoia Sugar co. Ltd vs West Kenya Sugar Ltd
    null
  • Kestem Co. Ltd vs Ndala Shop Ltd and 2 others
    (2018) eKLR
  • Jacob Nyaga Njeru vs Njeru Kinanda
    (2017) eKLR
  • Nguruma Ltd vs Bonde Nielsan & 2 others
    (2014) eKLR
Jurisdiction invoked
Environment and Land Court Act, 2011 (suit regularly transferred from the High Court after the ELC Act 2011 came into operation)

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, "Tabitha Nkatha v Solomon K Mutungi & 2 others [2022] KEELC 337 (KLR)", Case Analysis (2022). Not stated in the judgment (application dated 30.7.2020 and application dated 11.2.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/337/eng@2022-04-06

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