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ELCDismissed· [2022] KEELC 1034 (KLR)

Josphat Mabiala Akoyo v George Mabele Sifuna & John Odhiambo [2022] KEELC 1034 (KLR)

Environment and Land Court
8 March 2022
FNFred Nyagaka
5,990 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale refused to reinstate a land suit dismissed for inaction after eight years of unexplained delay.

What this practically means

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Executive summary

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The plaintiff, who had sued the defendants in 2006 over alleged encroachment on his parcels LR Waitaluk/Mabonde Block 12/Sirembe/88 and 89, applied on 23/11/2021 to set aside an order of 10/2/2016 dismissing his suit for want of prosecution under Order 17 of the Civil Procedure Rules. He explained that he only learnt of the dismissal in November 2021, blaming his former advocates who allegedly kept him in the dark despite full payment of fees. The defendants opposed, citing the inordinate delay since 2016 and contesting the capacity of his current advocates on record. The judge first held that the Order 9 Rule 9 objection failed because a dismissal for want of prosecution is not a 'judgment', so leave or consent for the incoming firm was unnecessary. On the merits, he held that Order 12 Rule 7 was misconceived since the dismissal arose under Order 17, which contains no setting-aside provision; the applicant's remedy lay in sections 3 and 3A of the Civil Procedure Act, but at a higher evidential bar than Order 12 cases. The applicant failed to explain over eight years of inaction, produced no corroboration of his advocate's negligence, and notice of the dismissal had been duly served. His explanation was rejected as incredible. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the incoming advocates were properly on record under Order 9 Rule 9 given the suit had been dismissed

Holding

The dismissal for want of prosecution was not a judgment, so the Order 9 Rule 9 restriction did not apply; the firm was properly on record

Reasoning

The court analysed the phrase 'after judgment has been passed' in Order 9 Rule 9. Relying on Black's Law Dictionary, a judgment is a court's final determination of the parties' rights on the merits. Because the 10/02/2016 dismissal was procedural and did not adjudicate rights on the merits, it was not a judgment, and the rule's safeguards were not triggered.

p. 3
02

Whether the correct provisions were invoked for reinstatement of a suit dismissed under Order 17

Holding

Order 12 Rule 7 was inapplicable because the dismissal was under Order 17, which contains no setting-aside provision; sections 3 and 3A of the Civil Procedure Act supply the court's jurisdiction

Reasoning

The suit was dismissed on a notice to show cause under Order 17 Rule 2(1), not after non-attendance at a hearing. Order 12 Rule 7 therefore did not apply. Since Order 17 is silent on reinstatement, the applicant had to invoke the inherent/supplemental jurisdiction under sections 3 and 3A, which the court accepted as applicable.

p. 4
03

Whether the applicant showed sufficient cause for the inaction and delay of over eight years

Holding

The applicant failed to show sufficient cause; his explanation blaming his former advocate was uncorroborated and rejected

Reasoning

The applicant neither explained the two-and-a-half years of inactivity before dismissal nor the five years between dismissal and application. He offered no affidavit or correspondence from the former advocate proving the alleged negligence, and notice of the dismissal had been served on the advocates. An agent's acts bind the principal absent clear proof to the contrary.

p. 5

Legal principles established

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  • A dismissal of a suit for want of prosecution under Order 17 is not a judgment, so Order 9 Rule 9 leave requirements on change of advocate do not apply
  • Where there is no express provision for setting aside a dismissal under Order 17, sections 3 and 3A of the Civil Procedure Act come to the applicant's aid, but at a higher threshold of sufficient cause
  • A party blaming his advocate must demonstrate concrete steps taken to follow up the matter; mere assertion of counsel's fault is insufficient
  • Notice of intent to dismiss for want of prosecution may be given through cause lists, websites or court notice boards, and once given the court need do no more

Court orders

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  1. 1.The application dated 18/11/2021 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 Rules 3 and 5
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 17 Rules 2(1)
  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (10)

  • Josphat Oginda Sasia v Wycliffe Wabwile Kiiya
    [2022] eKLR
  • OMWOYO –VS- AFRICAN HIGHLANDS & PRODUCE CO. LTD
    [2002] 1 KLR
  • BELINDA MURAI & 6 OTHERS –VS- AMOS WAINAINA
    [1978] KLR
  • PHILLIP CHEMWOLO & ANOTHER –VS- AUGUSTINE KUBEDE
    [1982-88] KLR 103
  • Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others
    [2015] eKLR
  • Patriotic Guards Ltd v James Kipchirchir Sambu
    [2018] eKLR
  • Edney Adaka Ismail v Equity Bank Limited
    [2014] eKLR
  • Fran Investments Limited vs. G4S Security Services Limited
    [2015] eKLR
  • Jim Rodgers Gitonga Njeru v Al-Husnain Motors Limited & 2 others
    [2018] eKLR
  • Ivita vs. Kyumbu
    [1984] KLR 441
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act read with Order 17 of the Civil Procedure Rules; Article 159(2) of the Constitution of Kenya, 2010 invoked in the application

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Josphat Mabiala Akoyo v George Mabele Sifuna & John Odhiambo [2022] KEELC 1034 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1034/eng@2022-03-08

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