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ELCDismissed· [2022] KEELC 1311 (KLR)

Samuel Oluoch Helu v National Social Security Fund [2022] KEELC 1311 (KLR)

Environment and Land Court
16 February 2022
LMLucy N. Mbugua
1,247 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court ruled it cannot extend a lapsed deadline because the suit had automatically dismissed itself once time ran out.

What this practically means

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Executive summary

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The plaintiff/applicant moved the court by Notice of Motion dated 29th September 2021 seeking extension of the 45-day period ordered for payment of throwaway costs of Kshs. 15,000, and an order deeming cheque No. 000124 drawn in favour of Kipkenda & Co Advocates as having been paid. The applicant explained that counsel was in isolation due to exposure to Corona Virus when the ruling of 15th July 2021 reinstating the suit conditionally was delivered, and that Mr. Livingstone Ochieng, who held brief, left for the United States on 1st August 2021 without communicating the directions; the applicant learnt of the orders when his client enquired about a hearing date and immediately drew a cheque dated 13th September 2021, which the defendant declined. The defendant opposed, contending that the 45 days lapsed on 30th August 2021, that the suit stood automatically dismissed as directed, and that a court can only extend time that has not lapsed. The court identified a single issue: whether the application was merited. Noting that the suit had earlier been dismissed on 10th February 2020 for non-attendance after a six-year hiatus and reinstated conditionally on 15th July 2021, the court agreed with the defendant that by the time the cheque was drawn the suit stood dismissed by effluxion of time. Relying on the Supreme Court's decision in Nicholas Kiptoo arap Korir Salat and the Macfoy nullity principle, the court held it could not extend a lapsed period in a non-existent suit, and dismissed the application with costs to the respondent, the suit remaining dismissed.

Key legal issues

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01

Whether the court can extend time to pay throwaway costs after the compliance period has lapsed and the conditional reinstatement order has taken effect

Holding

The application was unmerited; the suit stood dismissed by effluxion of time and the court cannot extend a lapsed period in a non-existent suit

Reasoning

The reinstatement order of 15th July 2021 was conditional: throwaway costs of Kshs. 15,000 were to be paid within 45 days, failing which the order would stand vacated and the suit dismissed. The applicant's cheque was drawn on 13th September 2021, after the 45 days had expired on 29th August 2021. Following the Salat and Macfoy authorities on nullities, the dismissal took automatic effect and no order could revive it. The application was therefore dismissed with costs.

p. 2

Legal principles established

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  • A court cannot extend time for compliance with an order where the stipulated period has already lapsed and the suit stands dismissed as a nullity

Court orders

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  1. 1.The application dated 29.9.2021 is dismissed with costs to the Respondent
  2. 2.The suit stands dismissed

Authorities

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Cases cited (3)

  • Nicholas Kiptoo arap Korir Salat v the Independent Electoral & Boundaries Commission & 7 Others
    (2014) eKLR
  • Kawaljeet Singh Rekhi v Peter Wainaina Kamau & 2 others
    [2016] eKLR
  • Benjamin Macfoy v United Africa Co. Ltd
    [1961] 3 All ER, 1169
Jurisdiction invoked
Inherent jurisdiction to extend time for compliance with a court order (application under Notice of Motion); no specific constitutional or statutory provision stated in the judgment

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, "Samuel Oluoch Helu v National Social Security Fund [2022] KEELC 1311 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1311/eng@2022-02-16

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