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ELCAllowedNotice of Motion dated 3/12/2018 (ELC Thika)· [2022] KEELC 3241 (KLR)

Muthara v Wachira (Environment and Land Case Civil Suit 699 of 2017) [2022] KEELC 3241 (KLR)

Environment and Land Court
2 June 2022
JKJ G Kemei
817 words in judgment
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The bottom line

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A Kenyan land suit dismissed after its lawyer missed a court notice was reinstated because the notice went to the wrong law firm.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (J G Kemei, Judge) determined a Notice of Motion dated 3/12/2018 in which the Applicant sought reinstatement of a suit dismissed on 8/11/2018 for want of prosecution. The application, supported by an affidavit of Peter Mwenda Njagi, counsel on record, deponed that the suit had been transferred from ELC Milimani to Thika ELC without notice, and that the notice to show cause was served on the former firm, TM Kuria & Co Advocates, rather than on Mwenda Njagi Advocates who had conduct of the matter, hence the non-attendance. The Respondent did not comply with directions to file a Replying Affidavit and submissions, so the application was unopposed and was determined on the material on record and on its merits. The court framed one issue: whether the application was merited. Relying on Order 17 Rule 2(1) of the Civil Procedure Rules and the discretion discussed in Fran Investments Limited v G4S Security Services Limited [2015] eKLR, the court held that while Order 17 Rule 2(1) does not require formal service of notice (notice may be given via the website or cause-list), in this case the notice was served on the wrong firm. Balancing Article 159 and the overriding objective against expeditious disposal, the court allowed the application, reinstated the suit, directed the Plaintiff to fix it for hearing within 60 days failing which it would stand dismissed, and ordered each party to meet its own costs.

Key legal issues

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01

Whether the application for reinstatement is merited

Holding

The application is merited; the notice to show cause was served on the wrong firm (TM Kuria) and not Mwenda Njagi Advocates who had conduct of the matter, so non-attendance was not deliberate.

Reasoning

Order 17 Rule 2(1) permits dismissal of suits where no step is taken for one year, subject to notice to show cause. The impugned notice issued on 30/10/2018 was served on TM Kuria & Co Advocates for the Applicant rather than Mwenda Njagi Advocates who had conduct. Counsel's non-attendance was therefore attributable to lack of proper service. Balancing the discretion under Article 159 and the overriding objective against the need for expeditious disposal, the court found no prejudice to the Defendant and reinstated the suit.

p. 2

Legal principles established

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  • Order 17 Rule 2(1) of the Civil Procedure Rules does not require personal service of the notice to show cause; notice may be given through the court's official website or cause-list.
  • Dismissal for want of prosecution is discretionary and the overriding objective favours reinstatement so suits are heard on their merits.

Court orders

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  1. 1.The application is allowed
  2. 2.The suit is hereby reinstated
  3. 3.The Plaintiff is ordered to fix the matter for hearing expeditiously within the next 60 days in default the same shall stand dismissed with no further orders from the Court
  4. 4.Each party to meet its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Constitution of KenyaArticle 159

Cases cited (1)

  • Fran Investments Limited v G4S Security Services Limited
    [2015] eKLR
Jurisdiction invoked
Inherent discretion under Order 17 Rule 2(1) of the Civil Procedure Rules and Article 159 of the Constitution

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, "Muthara v Wachira (Environment and Land Case Civil Suit 699 of 2017) [2022] KEELC 3241 (KLR)", Case Analysis (2022). Notice of Motion dated 3/12/2018 (ELC Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3241/eng@2022-06-02

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