Property Development and Management Company PDM (Kenya) Limited v Bernard Kasema t/a Milionnaire Associates & 2 others [2022] KEELC 915 (KLR)
The bottom line
#A Kenyan court refused to reinstate a lawsuit dismissed for delayed prosecution, warning you cannot appeal and simultaneously ask the trial court to undo its own decision.
What this practically means
#Executive summary
#Key legal issues
#Whether a dismissal for want of prosecution made inter-partes can be set aside under Order 12 Rule 7
No. Order 12 Rule 7 deals with consequences of non-attendance; the dismissal here was rendered in the presence of the Plaintiff's counsel and pursuant to Order 17 Rule 4, making it a final appealable judgment
The court found that the adjournment application had been dismissed at the call-over, time was allocated, and when recalled counsel had no witness. The dismissal was therefore inter-partes, not ex parte. Order 12 Rule 7 governs dismissals arising from non-attendance and cannot be invoked. A dismissal under Order 17 Rule 4 is a judgment, per Njue Ngai v Ephantus Njiru Ngai, and lies on appeal to the Court of Appeal rather than being reviewable by the trial court.
Whether the trial court retains jurisdiction to set aside a decision against which a Notice of Appeal has been filed
No. Once a Notice of Appeal is filed, the impugned decision can only be addressed by the Court of Appeal; a parallel application to set aside is an abuse of due process
The Plaintiff had filed a Notice of Appeal and bespeaking of proceedings. The court held that the appeal had been invoked and that disturbing the decision by setting aside would render the appeal otiose. Relying on Muchanga Investments, the court characterised the simultaneous pursuit of two routes against one decision as a multiplicity of processes amounting to an abuse of the due process of the court, which must be frowned upon.
Whether the counter-claim proceedings of 3rd November 2021 could be set aside
No. They were conducted inter-partes with the Plaintiff's counsel fully participating, and no sufficient cause was shown
The counter-claimer testified and was cross-examined by Mr Ben Munge, counsel for the Plaintiff, and re-examined by his own counsel before the case closed. Proceedings conducted in the presence of counsel appointed by a party are not ex parte, so Order 12 does not apply. Even if amenable, the Plaintiff offered no sufficient cause; choosing an internal board meeting over court attendance was contemptuous conduct the court could not sanction.
Whether the Plaintiff laid a basis for stay of proceedings pending appeal
No. The test is high and stringent, requiring exceptional circumstances, none of which were demonstrated
Relying on Kenya Wildlife Service v James Mutembei, Global Tours & Travels and Halsbury's Laws, the court held that stay of proceedings interferes with access to justice and fair trial and is exercised sparingly. A party not keen to prosecute a suit could not seek to keep proceedings hanging indefinitely; such an application is contrary to Articles 10(2), 27(1) and 159(2)(b) of the Constitution, particularly that justice shall not be delayed.
Legal principles established
#- A dismissal of a suit for want of prosecution under Order 17 Rule 4 is a final judgment, appealable to the Court of Appeal and not amenable to setting aside under Order 12 Rule 7 where made inter-partes
- A party cannot simultaneously pursue an appeal against a decision and apply to the trial court to set aside the same decision; doing so is an abuse of due process
- Sufficient cause for setting aside orders must be a rational, plausible, convincing, reasonable and truthful explanation without unexplained gaps
- Stay of proceedings is a grave judicial action to be granted sparingly and only on a high and stringent test
Court orders
#- 1.The Application dated the 26th November 2021 be and is hereby Dismissed
- 2.Costs of the Application to the Defendants/Respondents
- Jurisdiction invoked
- Inherent jurisdiction under the Civil Procedure Rules 2010 (Order 12 Rule 7 and Order 17 Rule 4) read with Article 159(2)(b) of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Property Development and Management Company PDM (Kenya) Limited v Bernard Kasema t/a Milionnaire Associates & 2 others [2022] KEELC 915 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 26th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/915/eng@2022-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.