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ELCDismissedNot stated in judgment· [2022] KEELC 1806 (KLR)

Fatuma Farah Hassan v Issack Mahat Gabow & 2 others [2022] KEELC 1806 (KLR)

Environment and Land Court
28 January 2022
ECE.C. CHERONO
1,192 words in judgment
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The bottom line

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A Kenyan land court refused to dismiss a delayed land case, ruling the Covid-19 court closures — not negligence — caused the delay, and the matter must now be heard.

What this practically means

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Executive summary

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The 1st Defendant, Isaack Mahat Gabow, applied by Notice of Motion dated 12th July 2021 for dismissal of the suit for want of prosecution, supported by his advocate Peter Odhiambo, contending that the suit had not been prosecuted for a year since the ruling of 31st January 2020. The Plaintiff, through attorney Badhir Farah Hassan holding a registered special power of attorney, opposed the application, explaining attempts to fix the matter for hearing on 27th March 2020, which failed due to the closure of courts during the Covid-19 pandemic, and a further invitation of 23rd November 2020 on which no dates issued. The court considered Order 17 Rule 2 of the Civil Procedure Rules and the principles in Mwangi Nedangi S. Kimenyi v Attorney General & Another, including whether the delay was intentional and contumelious, inordinate and inexcusable, or prejudicial to a fair trial. Taking judicial notice of the pandemic and Gazette Notice No. 3137 of 2020 limiting physical access to courts, the court found the delay was not intentional, since the plaintiff had actively sought hearing dates and two witnesses had already testified. The defendant did not demonstrate any prejudice. The court held it would be draconian to dismiss the suit at that stage, as only in exceptional cases should a suit be dismissed without hearing on the merits. The application was dismissed with no orders as to costs, and parties were directed to fix the matter for hearing on a priority basis.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2

Holding

The application lacks merit; the delay was attributable to the Covid-19 pandemic and the plaintiff had shown diligence in prosecuting the suit

Reasoning

The court applied the principles in Mwangi Nedangi S. Kimenyi v Attorney General & Another, considering whether the delay was intentional and contumelious and whether it caused prejudice. Judicial notice was taken of the Covid-19 pandemic and the closure of courts, which explained the failure to proceed on 27th March 2020. The plaintiff had promptly sought hearing dates and two witnesses had already testified, while the defendant showed no prejudice.

p. 2

Legal principles established

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  • Prolonged delay alone should not prevent the court from doing justice; dismissal for want of prosecution is guided by whether delay was intentional, contumelious, inordinate, inexcusable, or prejudicial to fair trial, weighed against prejudice to the plaintiff
  • A court should be reluctant to dismiss a suit without hearing it on the merits

Court orders

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  1. 1.The Defendant's Notice of Motion dated 12th July 2021 is dismissed with no orders as to costs
  2. 2.Parties are directed to fix the matter for hearing on a priority basis

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2

Cases cited (1)

  • Mwangi Nedangi S. Kimenyi V Attorney General & Another
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Order 17 Rule 2 of the Civil Procedure Rules

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, "Fatuma Farah Hassan v Issack Mahat Gabow & 2 others [2022] KEELC 1806 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1806/eng@2022-01-28

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