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ELCAllowedEnvironment & Land Case 147 of 2014· [2022] KEELC 2396 (KLR)

Ndavi v Kimanthi (Environment & Land Case 147 of 2014) [2022] KEELC 2396 (KLR)

Environment and Land Court
30 May 2022
COChristine Ochieng
1,455 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a 96-year-old landowner's dismissed suit, confirming illness with medical proof justifies reinstatement but with a strict 60-day deadline.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Machakos (Christine Ochieng, J) on the plaintiff's notice of motion dated October 19, 2021, brought under section 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, seeking to set aside orders of September 22, 2021 dismissing her suit for non-attendance and to reinstate the suit. The plaintiff, a 96-year-old senior citizen, explained through her advocate, Leonard Katunga Mbuvi, that she was unwell on the hearing date and annexed medical reports showing she had been treated for pneumonia. The defendant opposed, asserting the plaintiff had been indolent, had failed to pay costs awarded on a prior last adjournment, that no prior communication of illness had been made, and that the medical notes were a fabrication, having personally left her at her home in Katangi that morning. The court framed a single issue: whether the dismissal orders should be set aside and the suit reinstated. Applying the Ivita v Kyumbu test and Order 12 Rule 7, the court noted the plaintiff's advanced age, the medical evidence, the benefit of doubt owed to her, the defendant's own past adjournments, and the article 50 right to be heard, and observed that land matters are emotive. The court allowed the application, set aside the dismissal and consequential orders, reinstated the suit for hearing within 60 days failing which it would stand dismissed, and awarded the defendant the costs of the application.

Key legal issues

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01

Whether the court should exercise its discretion under Order 12 Rule 7 to set aside dismissal of the plaintiff's suit for non-attendance

Holding

Yes - the dismissal was set aside, the suit reinstated, and the plaintiff given 60 days to prosecute it

Reasoning

The plaintiff, a 96-year-old senior citizen, furnished medical reports showing she had contracted pneumonia and been treated on the hearing date. Though the defendant disputed the report as a fabrication, the court extended the benefit of doubt given her advanced age. The record showed both parties had caused delays, the plaintiff had attempted to prosecute the matter, and article 50 guarantees a right to be heard. Reinstatement would allow determination on the merits.

p. 3

Legal principles established

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  • The test in reinstatement/dismissal for want of prosecution applications is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay
  • Article 50 of the Constitution grants a party a right to be heard, and it is in the interest of justice that a suit be determined on its merits

Court orders

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  1. 1.Set aside the orders issued on September 22, 2021 dismissing the plaintiff's suit and all other consequential orders
  2. 2.Reinstate the plaintiff's suit
  3. 3.Direct that the plaintiff's suit be set down for hearing within sixty (60) days from the date of the ruling, failing which it will stand dismissed for want of prosecution
  4. 4.Award the defendant the costs of the application

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 12 Rule 3(1)
  • Civil Procedure RulesOrder 17
  • Civil Procedure RulesOrder 11
  • Constitution of Kenya, 2010article 50

Cases cited (4)

  • Peter Mumo Masave v Mutua Kilako & another
    2019 eKLR
  • Exon Investments Ltd v African Banking Corporation Limited
    (2021) eKLR
  • Nilesh Premchad Mulji Sha & another t/a Ketan Emporium v MD Popat and others
    (2016) eKLR
  • Ivita v Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 12 Rule 7 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, "Ndavi v Kimanthi (Environment & Land Case 147 of 2014) [2022] KEELC 2396 (KLR)", Case Analysis (2022). Environment & Land Case 147 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2396/eng@2022-05-30

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