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ELCDismissedNot stated in the judgment· [2022] KEELC 848 (KLR)

Kibue Mutungu Hanniel v Isaac Gichohi Mwangi & 3 others [2022] KEELC 848 (KLR)

Environment and Land Court
10 March 2022
1,048 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to dismiss a delayed suit because Covid-19 court suspensions explained the delay, and existing property orders remain in place.

What this practically means

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Executive summary

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This was a Notice of Motion dated 28th April 2021 by the 1st Defendant, Isaac Gichohi Mwangi, seeking dismissal of the Plaintiff's suit for want of prosecution under Order 17 rule 2(1) and (3) of the Civil Procedure Rules, and the vacation of conservatory orders, a temporary injunction and a restriction order all issued on 24th October 2019 in respect of LR No. 14225/8 (IR No. 61626). The application was supported by the affidavits of the 1st Defendant and opposed by the Plaintiff through grounds of opposition and a replying affidavit; parties canvassed the motion by written submissions. The 1st Defendant argued inordinate and inexcusable delay, relying on George Gatere Kibata and Mwangi S. Kaimenyi. The Plaintiff relied on Jason Mudaki Kivati, Ivita vs Kyumbu, Ceven Limited and other authorities, contending that the power to dismiss is discretionary, the substratum of the suit was intact, and no prejudice would be suffered. The court, Komingoi J, framed a single issue: whether the application was merited. Reviewing the record, the court took judicial notice that the lapse in activity between 17th March 2020 and 12th April 2021 coincided with the suspension of court operations due to the Covid-19 pandemic, and noted the Plaintiff had complied with Order 11 by 5th July 2021. Following Jason Mudaki Kivati, the court held the discretionary 'may' power depends on the circumstances of each case, found the Plaintiff's explanation reasonable, and found no prejudice to the 1st Defendant. The application was dismissed with no orders as to costs on 10th March 2022.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules

Holding

The application is not merited; the delay was explained by the suspension of court operations during the Covid-19 pandemic and no prejudice will be suffered by the 1st Defendant

Reasoning

The court reviewed the record and noted the matter was last before court on 17th March 2020, during the Covid-19 suspension of court operations, and only came up again on 12th April 2021. The Plaintiff had complied with Order 11 by 5th July 2021. Applying Order 17 rule 2, the court held the discretionary power to dismiss had not been triggered justifiably, the explanation was reasonable, and the matter should proceed to full hearing.

p. 2
02

Whether the conservatory, injunction and restriction orders issued on 24th October 2019 should be vacated

Holding

The orders were not vacated because the application seeking their vacation was dismissed

Reasoning

The raising of the interim orders was premised on dismissal of the suit for want of prosecution. Having found the Plaintiff had given a reasonable explanation for the delay and that no prejudice would be occasioned to the 1st Defendant, the court declined to disturb the interim orders, holding the matter ought to go to full hearing so all issues are resolved.

p. 2

Legal principles established

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  • Order 17 rule 2 confers a discretionary power ('may') on the court to dismiss a suit where no step has been taken for one year; the decision depends on the circumstances of each case
  • A suit should not be dismissed for want of prosecution where the plaintiff gives a reasonable explanation for the delay and no prejudice is occasioned to the defendant

Court orders

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  1. 1.The Notice of Motion dated 28th April 2021 is dismissed with no orders as to costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 17 rule 2(1), (2), (3) and (4)
  • Civil Procedure Rules 2010Order 11

Cases cited (7)

  • George Gatere Kibata vs George Kuria Mwaura & Another
    [2017] eKLR
  • Mwangi S. Kaimenyi vs Attorney General & Another
    Civil Suit Misc. No 720 of 2009
  • Jason Mudaki Kivati vs David Kenyani Ongusu
    [2018] eKLR
  • Ivita vs Kyumbu
    1984 KLR 441
  • Ceven Limited vs Erastus Gichuhi & 4 Others
    [2021] eKLR
  • Pkiech Chesimaya vs Limakorwai Achipa
    [2020] eKLR
  • John Harun Mwau vs Standard Limited & 2 Others
    [2017] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 17 rule 2(1) and (3) of the Civil Procedure Rules 2010

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, "Kibue Mutungu Hanniel v Isaac Gichohi Mwangi & 3 others [2022] KEELC 848 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/848/eng@2022-03-10

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