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ELCPartially Allowed· [2022] KEELC 2475 (KLR)

Oroto & another v Okello & 4 others (Environment & Land Case 56 of 2019) [2022] KEELC 2475 (KLR)

Environment and Land Court
21 July 2022
AOA. Omollo
2,045 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Busia reinstated a dismissed 15-acre land ownership suit, but only on strict conditions including a Kshs.60,000 security deposit.

What this practically means

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Executive summary

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The Applicants, plaintiffs in an Originating Summons seeking to be declared absolute registered owners of 15 acres of land parcel Samia/Budongo/371 on the basis of peaceful occupation exceeding 40 years since 1978, applied by notice of motion dated 15th November 2021 to set aside an order dismissing their suit for want of prosecution and to reinstate it. The suit had been dismissed on 24th June 2021 after the court allowed a dismissal application dated 25th March 2021 filed by the Respondents, to which no grounds of opposition were offered. The Applicants explained that their instructing agent, their sister, had been seriously ill and their counsel lacked direct instructions. The Respondents opposed, describing the application as an afterthought filed only after the Respondents' bill of costs was taxed, and noting the Applicants' failure to substitute the deceased 1st to 4th Respondents despite orders to do so. The court, per A. Omollo J, applied Order 12 Rule 7 and the principles in Utalii Transport Company Ltd v NIC Bank on inordinate delay. It found the four-month delay excusable in light of COVID-19 disruptions, and held that dismissal might occasion injustice to the Applicants, who reside on the land, while the Respondents could be compensated by costs. Relying on Joseph Kinyua v G.O Ombachi, the court allowed the application conditionally: reinstatement upon deposit of Kshs.60,000 security for costs within 90 days and withdrawal from or substitution of the deceased defendants within 120 days, failing which the dismissal would automatically revive. Costs of the application were awarded to the 2nd (5th) and 3rd defendants/respondents.

Key legal issues

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01

Whether there was inordinate delay by the Applicants in seeking reinstatement of the dismissed suit

Holding

The four-month delay was excused as not inordinate, given the COVID-19 pandemic inconveniences

Reasoning

The court applied the principles in Utalii Transport Company Ltd v NIC Bank on what constitutes inordinate delay, noting there is no precise measure and delay is assessed case by case. Although the applicants moved the court approximately four months after dismissal, this period fell within the timeframe affected by COVID-19 restrictions, and the court found the delay excusable.

p. 4
02

Whether the dismissal would occasion prejudice to the Applicants

Holding

Dismissal, if left to stand, might occasion injustice since the Applicants are in possession of the suit land and seek a declaration of ownership by adverse possession-type claim over 15 acres; the Respondents would suffer no prejudice if the suit were reinstated

Reasoning

The Applicants sought to be declared absolute registered owners of 15 acres of Samia/Budongo/371, having been in peaceful actual possession for over 40 years since 1978, with photos showing permanent homesteads. The court found the Respondents could be compensated by costs/damages for the delay, echoing Joseph Kinyua v G.O Ombachi that dismissal is a draconian order driving a litigant from the seat of justice.

Legal principles established

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  • A dismissed suit may be set aside and reinstated on such terms as may be just under Order 12 Rule 7 of the Civil Procedure Rules
  • A delay of about four months in seeking reinstatement may be excused in the circumstances, including COVID-19 pandemic inconveniences, where dismissal would occasion injustice

Court orders

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  1. 1.Set aside the orders dismissing the Plaintiffs' suit and reinstate the suit to be heard on merit
  2. 2.Plaintiffs to deposit Kshs.60,000 in Court as security for costs of the 2nd (5th) and 3rd defendants within 90 days
  3. 3.Plaintiffs to either withdraw the suit against deceased defendants or apply to substitute them within 120 days
  4. 4.In default of both conditions, the order of dismissal automatically reinstated
  5. 5.Costs of the application awarded to the 2nd (5th) and 3rd defendants/respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 25 Rule 6
  • Civil Procedure RulesOrder 17 Rule 2(1) & 3

Cases cited (8)

  • Invita vs. Kyumba (1984) KLR 441
    (1984) KLR 441
  • Anthony Murigi Kiarie vs. Bidco Oil Refineries Limited
  • Utalii Transport Company Limited & 3 Others vs. NIC Bank & Another (2014) eKLR
    (2014) eKLR
  • Allen V Alfred McALPHINE & Sons [1968] 1 All ER 543
    [1968] 1 All ER 543
  • AGIP (Kenya) Limited V Highlands Tyres Limited [2001] KLR 630
    [2001] KLR 630
  • Sagoo V Bhari [1990] KLR 459
    [1990] KLR 459
  • NBI HC ELC CASE NO 2058 OF 2007
  • Joseph Kinyua v G.O Ombachi [2019] eKLR
    [2019] eKLR
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7, Order 22 Rule 22 and Order 25 Rule 6 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, "Oroto & another v Okello & 4 others (Environment & Land Case 56 of 2019) [2022] KEELC 2475 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2475/eng@2022-07-21

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