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ELCAllowedNot stated in judgment (petition filed December 18, 2014; application dated March 2, 2022)· [2022] KEELC 3873 (KLR)

Gatobu & another v Kinuthia & another (Petition 44 of 2014) [2022] KEELC 3873 (KLR)

Environment and Land Court
27 July 2022
CNC.K. Nzili
2,247 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan land court reinstated a petition dismissed after seven years of inaction, ruling that the right to be heard outweighs a litigant's delay.

What this practically means

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Executive summary

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The 1st and 2nd petitioners applied by notice of motion dated March 2, 2022 to set aside orders of February 17, 2022 dismissing their petition for want of prosecution, and to have the petition reinstated for hearing on merits. They explained that counsel, engaged in a Nanyuki suit, could not link up virtually in time, and that no prejudice would befall the defendants. The 2nd respondent, Dr. Ahmed Galgalo Guyo, opposed through a replying affidavit, describing the application as an abuse of process, pointing to numerous mention and show-cause dates since 2019 at which the petitioners, who had been serving notices themselves, never appeared, and invoking the maxim that equity aids the vigilant. The underlying petition, filed December 18, 2014, claimed ownership of 2 acres in Mwangaza B, Isiolo Town, alleging fraudulent subdivision and allocation by the 1st respondent with the defunct county council, and sought declarations, cancellation of allocations, demolition, eviction and a permanent injunction. The court reviewed the jurisprudence on setting aside dismissals (Shah vs Mbogo, Ivita vs Kyumbu, Nixon Andati, among others) and acknowledged that the petitioners had been indolent for seven years with no explanation. However, finding that the 2nd respondent had not demonstrated specific prejudice from reinstatement, and guided by Articles 48 and 50(1) on access to justice and fair hearing, the court allowed the application, awarded costs of Kshs.20,000 to the 2nd respondent's counsel, and transferred the file to the ELC Isiolo for directions and final disposal before Justice P.M Njoroge on October 5, 2022.

Key legal issues

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01

Whether the petitioners' indolence warranted refusal of reinstatement

Holding

The court found the application, on its own merits, lacking, given seven years of unexplained inaction

Reasoning

The court reviewed multiple mention dates from 2019 to 2021 at which the petitioners never appeared, despite service of notices by the respondents and the court. The supporting affidavit gave no explanation for the delay since 2014, and the ordered amendment of the petition was never effected. Following Shah vs Mbogo and Utalii Transport, the primary duty to prosecute lies with the petitioner.

p. 4
02

Whether fair hearing and access to justice outweighed the delay

Holding

Yes; the petitioners' constitutional right to a fair hearing prevailed where no specific prejudice to the respondents was demonstrated

Reasoning

The 2nd respondent did not show what prejudice reinstatement would cause - it did not allege the suit land had been alienated, that witnesses were unavailable, or that documents could not be procured. Following Ivita vs Kyumbu and Nixon Andati, the court held that shutting the petitioners out would cause greater prejudice, denying them their day in court over land rights.

p. 5

Legal principles established

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  • The discretion to set aside dismissal orders is intended to avoid injustice or hardship resulting from inadvertence or excusable mistake, but not to assist a party who deliberately obstructs or delays justice
  • The test for reinstatement after inordinate delay is whether the delay is prolonged and inexcusable and whether justice can still be done despite it
  • To deny a litigant a hearing should be the last resort of a court
  • Even where a party is indolent, the right of access to justice and fair hearing may justify reinstatement where no specific prejudice to the other side is demonstrated

Court orders

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  1. 1.The application dated March 2, 2022 is allowed
  2. 2.Costs of Kshs.20,000 to be paid to the 2nd respondent's counsel on record within 14 days
  3. 3.The file transferred to ELC Isiolo court for directions and final disposal
  4. 4.Mention before the Presiding Judge Hon. Justice P.M Njoroge on October 5, 2022
Jurisdiction invoked
Article 48 & 50(1) of the Constitution and Rule 7 of the Constitution of Kenya (Fundamental Rights and Freedoms) Procedure and Practice Rules 2013 (inherent power to make orders necessary for the ends of justice)

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, "Gatobu & another v Kinuthia & another (Petition 44 of 2014) [2022] KEELC 3873 (KLR)", Case Analysis (2022). Not stated in judgment (petition filed December 18, 2014; application dated March 2, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3873/eng@2022-07-27

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