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ELCDismissedNot stated in the judgment as provided· [2023] KEELC 42 (KLR)

Appeal against ruling dismissing application to set aside dismissal of suit for want of prosecution and reinstate suit

Environment and Land Court
18 January 2023
CYC.K Yano
2,422 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed a suit withdrawn by a client's own advocate in 2013 could not be revived in 2020 without proof of fraud.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Meru against a ruling of the subordinate court dated April 29, 2021 dismissing the appellant's application dated November 26, 2020. That application had sought to review and set aside an order dismissing the appellant's suit for want of prosecution, reinstate the suit for hearing on merit, and grant leave to substitute parties. The underlying suit, filed in 2009 over parcel No 3145 Amwathi/Maua, had been withdrawn on October 4, 2013 by a notice of withdrawal filed by the appellant's then advocates, Mbogo & Muriuki Advocates. The appellant argued that her suit was dismissed on a technicality and that the negligence of her former advocates should not be visited upon her, citing provisions of the Civil Procedure Act, the Civil Procedure Rules and the Evidence Act and various authorities on review and reinstatement. The 1st respondent maintained the application was incompetent, that the delay of over seven years post-withdrawal and eleven years of inaction showed lack of interest, and that the appellant was estopped from denying her advocate's acts. The 2nd and 3rd respondents argued lack of jurisdiction, exhaustion of ADR mechanisms under land adjudication statutes, and abuse of process. Yano ELC J identified the sole issue as whether the trial magistrate wrongly exercised his discretion. The court held that the suit had been validly withdrawn by the appellant's own advocate, that such acts bind a client absent fraud or collusion (neither alleged nor proved), and that there was no suit pending to reinstate in 2020. The magistrate's decision was found well founded and the appeal was dismissed with costs to the respondents on January 18, 2023.

Key legal issues

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Whether the trial magistrate wrongly exercised discretion in dismissing the application dated November 26, 2020 seeking review and reinstatement of the suit

Holding

The trial magistrate did not err; the suit had been validly withdrawn by the appellant's own advocate in 2013, so there was no suit to dismiss for want of prosecution or to reinstate in 2020

Reasoning

The court noted the firm of Mbogo & Muriuki Advocates had instructions to act and filed a notice of withdrawal of the entire suit on October 4, 2013. Acts of an advocate bind the client unless fraud or collusion is shown, none of which was alleged or proved. By November 26, 2020 no suit was pending; the application was therefore incompetent in substance and the magistrate's dismissal was justified on the material on record.

p. 5

Legal principles established

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  • Acts of an advocate on record bind the client unless fraud or collusion is shown
  • There can be no reinstatement of a suit that has been validly withdrawn; nothing remains to dismiss or reinstate

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 22
  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure RulesOrder 45 (rule 1(1)(2)&(3))
  • Civil Procedure RulesOrder 17 (rule 2(1))
  • Civil Procedure RulesOrder 10 Rule 11
  • Evidence ActSections 35, 60, 67, 68, 81, 83, 107-110, 116, 120
  • Constitution of Kenya 2010Article 27
  • Constitution of Kenya 2010Article 159(2)(c)
  • Land Adjudication ActNot specified
  • Land Consolidation ActNot specified

Cases cited (30)

  • Khalif Sheikh Adan v the Honourable Attorney General
    (2019) eKLR
  • Shah v Mbogo
    (1969) EA 116, 123
  • Elizabeth Kavere & another v Lilian Atho & another
    (2020) eKLR
  • Argan Wekesa Okumu v Dima College Limited & 2 others
    (2015) eKLR
  • Ivita v Kyumba
    (1984) KLR 441
  • Thabitini Development Company Limited v Mombasa Water and Sewerage Company and another
  • Rose Makokha Mteka v Oserian Development Co. Limited
    (2022) eKLR
  • Barnabas Maritim v Manywele Korgoren & another
    (2016) eKLR
  • Cosmas Mrombo Moka v Co-operative Bank of Kenya Limited and another
    (2018) eKLR
  • Abok James Odera T/a A. J. Odera & Associates v John Patrick Machira T/a Machira & Co. Advocates
    (2013) eKLR
  • Skool Enterprises Limited v Housing Finance Company of Kenya & 3 others
    (2017) eKLR
  • Reuben Indiatsi Nasibi v Alfred Machayo & another
    (2020) eKLR
  • Elosy Murugi Nyaga v Tharaka Nithi County Government & another
    (2020) eKLR
  • Tirth Construction Limited v Orion Hotels Limited
    (2020) eKLR
  • Janeffer Irumbi Nyagah v John Njoka Ngiri & another
    (2019) eKLR
  • Lagoon Development Limited v Beijing Industrial Designing and Research Institute
    (2015) eKLR
  • Kestem Company Ltd v Ndala Shop Limited & 2 others
    (2018) eKLR
  • Ivita v Kyumbu
    (1975) eKLR
  • Teachers Service Commission v Simon P. Kamau & 19 others
    (2015) eKLR
  • Titus Muiruri Doge v Kenya Canners Ltd
    (1988) eKLR
  • Washumbu (DA) Company Limited v City Building Limited & another
    (2019) eKLR
  • Stephen Kungatia & 2 others
  • Speaker of the National Assembly v James Njenga Karume
    (1992) eKLR
  • Mbogo & another v Shah
    (1968) EA 93
  • Matiba v Moi & 2 others
    (2008) KLR 670
  • Josephat Oginda Sasia v Wycliffe Wabwile Kiiya
    (2022) eKLR
  • Edney Adaka Ismail v Equity Bank Limited
    (2014) eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd
    (1967) EA 287
  • Joseph Kiruja Maingi v Rose Nambura & 2 others
    (2021) eKLR
  • Evan Bwire v Andrew Nginda
    Civil Appeal No 103 of 2000, Kisumu (2000) LLR 8340
On appeal from
Subordinate court (magistrates' court)
Jurisdiction invoked
First appeal from the subordinate court (statutory first-appeal jurisdiction; specific provision not cited in the judgment)

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, "Appeal against ruling dismissing application to set aside dismissal of suit for want of prosecution and reinstate suit", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/42/eng@2023-01-18

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