Gicheru & another v Ongonga (Cause 435 of 2015) [2023] KEELC 38 (KLR)
The bottom line
#A Kenyan court dismissed a bid to revive a suit thrown out for delay, confirming that appeal—not review—is the remedy when dismissal happens in your lawyer's presence.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to entertain the review application
The court lacked jurisdiction to re-engage with the suit by way of review; a dismissal for want of prosecution under Order 17 Rule 4 made in the presence of counsel is an inter-partes final judgment appealable, not reviewable under Order 12 Rule 7 or Order 45.
The court reasoned that the dismissal of a suit for want of prosecution constitutes a judgment in favour of the defendant, as held in Njue Ngai v Ephantus Njiru Ngai. Since the dismissal was made in the presence of the plaintiffs' counsel, a recognized agent under Order 9, it was a final inter-partes judgment. The court reiterated its prior decisions in Homeboyz Entertainment and China Bente Industry and declined to depart from them absent contrary Court of Appeal authority.
Error or mistake on the face of the record
There was no error or mistake on the face of the record warranting review.
Counsel appearing on the hearing date had clearly stated she had no witnesses and intended to file an application to cease acting; she never recanted those representations. Further, under Order 9 Rules 12 and 13, an advocate remains on record until discharged by court order, and the cessation application was only disposed of after the dismissal. The plaintiffs were therefore duly represented when the dismissal was made.
Right to fair hearing / condemnation unheard
The plaintiffs were not condemned unheard; they were afforded a fair opportunity to be heard but spurned it, and Article 159(2)(b) obliges litigants to actively prosecute their suits.
The court noted the plaintiffs and their recognized agent were present when the matter was fixed and when it was dismissed, and the submissions made were accurate. Relying on the principle in Halsbury's Laws and Said Sweilem Gheithan Saanum v Commissioner of Lands, the court held that mistakes of advocates appointed by parties can be visited upon them and that justice delayed is contrary to constitutional principle.
Legal principles established
#- A dismissal of a suit for want of prosecution made in the presence of the parties or their counsel amounts to a final inter-partes judgment which the same court cannot set aside, vary or discharge; the remedy is appeal.
- Jurisdiction is foundational; a court must satisfy itself of jurisdiction before engaging with the merits.
- An advocate remains on record for a party until duly discharged by order of the court, and remains so to the conclusion of the cause including review or appeal.
Court orders
#- 1.The application dated the April 22, 2022 be and is hereby Dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Order 45 Rule 1 and Order 17 Rules 2 and 4 of the Civil Procedure Rules, 2010; review jurisdiction invoked by the Applicants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gicheru & another v Ongonga (Cause 435 of 2015) [2023] KEELC 38 (KLR)", Case Analysis (2023). Cause No 435 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/38/eng@2023-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.