Ndungu v Wachira & another (Environment & Land Case 41 of 2018) [2022] KEELC 3055 (KLR)
The bottom line
#A Kenyan court reinstated a land case dismissed after a missed hearing, but only on strict 15-day conditions, and refused to halt a property auction.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit dismissed for want of prosecution on 29/9/2021 should be reinstated
Reinstated on conditions, in the interest of justice, despite inordinate and unexplained delay, subject to compliance within 15 days
The plaintiff conceded counsel knew the hearing date but failed to attend either virtually or in open court, and it took five months to move the court. The delay was not satisfactorily explained. However, applying the test in John Nahashon Mwangi v Kenya Finance Bank, balancing the prejudice to both sides and in the interest of justice, the court exercised its discretion to reinstate on strict conditions with throw-away costs and automatic dismissal upon default.
Whether the plaintiff was entitled to stay of the 2nd defendant's statutory power of sale
Refused; the prayer was not supported by evidence and the motion's supporting affidavit was at variance with the prayers
The supporting affidavit dealt with allegations of forged loan signatures by the plaintiff's late wife rather than the grounds in the motion. The plaintiff failed to canvass the application as prayed and did not file submissions. Following dismissal of the suit, the 2nd respondent's statutory power of sale under section 96(1) of the Land Act had crystallised, and the 2nd respondent was entitled to have its day in justice and exercise that power.
Legal principles established
#- Reinstatement of a suit dismissed for non-attendance is a discretionary remedy granted to a deserving party upon plausible explanation for non-attendance.
- In reinstatement applications the court weighs whether there are reasonable grounds to reinstate, balancing the prejudice to the defendant if reinstated against the prejudice to the plaintiff if not reinstated.
Court orders
#- 1.The plaintiff's suit dismissed on 29/9/2021 is reinstated
- 2.The plaintiff to take steps to list the matter for hearing within 15 days from the date of the order
- 3.The plaintiff condemned to pay throw away costs to the 2nd defendant of Kshs 10,000/- payable within 15 days
- 4.In default of compliance, the suit shall stand dismissed at the end of that period
- Jurisdiction invoked
- Order 12 rule 6(1) of the Civil Procedure Rules (application to reinstate a suit dismissed for non-attendance)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu v Wachira & another (Environment & Land Case 41 of 2018) [2022] KEELC 3055 (KLR)", Case Analysis (2022). Not stated in the judgment (notice of motion dated 7/2/2022 in the plaintiff's suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3055/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.