Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2023] KEELC 129 (KLR)

Kipsigis Teachers College v African Banking Co-operatiion Ltd (Environment & Land Case 19 of 2019) [2023] KEELC 129 (KLR)

Environment and Land Court
19 January 2023
MOM.C. Oundo
1,082 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kericho dismissed a landowner's attempt to revive their struck-out suit because they repeatedly ignored court orders and deadlines.

What this practically means

#

Executive summary

#
The court dismissed a Notice of Motion dated February 8, 2021 by which the Applicants sought to set aside dismissal orders of February 2, 2021, reinstate the suit for hearing, reinstate an application dated March 27, 2019, and extend leave to file a company resolution dated June 15, 2020. The suit had been struck out pursuant to a ruling of May 20, 2020 which directed that a resolution of the Applicant's company rectifying the filing of the suit by the firm of M/s J K Rono and Company Advocates, together with a supporting affidavit, be filed within 60 days, failing which the suit would stand struck out. No compliance was ever made. The Respondent opposed the application as an abuse of process, contending that the evidence relied on did not constitute new and important evidence discoverable with due diligence. The court chronicled the Applicant's persistent non-compliance: failure to comply with the May 2020 directives, hurried filing of an injunction application, non-appearance on mention dates, failure to file a Notice of Appeal within granted leave, and, decisively, failure to file written submissions as directed by the court in the absence of the Applicant's Counsel. Relying on the Court of Appeal's decision in Rowlands Ndegwa v County Government of Nyeri, citing Winnie Wanjiku Mwai, the court held that dismissal for want of prosecution is warranted where there is delay, prejudice, and no adequate explanation for inactivity. The court found inertia, inordinate delay and lack of interest on the Applicant's part and dismissed the main motion with costs. The judgment was delivered virtually at Kericho on January 19, 2023 by M.C. Oundo, Environment and Land Judge.

Key legal issues

#
01

Whether the application to set aside dismissal and reinstate the suit should be allowed

Holding

The application was dismissed for want of prosecution due to the Applicant's persistent non-compliance with court orders.

Reasoning

The suit had been struck out following a ruling of May 20, 2020 requiring filing of a company resolution within 60 days, which was never done. The Applicant subsequently failed to appear, failed to comply with directions, and failed to file written submissions as ordered, even after extensions. The court found inertia, inordinate delay and lack of seriousness, and applied the principles in Rowlands Ndegwa on dismissal for want of prosecution.

p. 3
02

Effect of failure to file written submissions as ordered

Holding

Failure to file ordered submissions amounts to failure to prosecute the application, rendering it liable for dismissal.

Reasoning

The court held that under the new constitutional dispensation filing of written submissions is the norm, serving expedience and enabling evaluation of evidence and analysis of the law. A party who fails to file submissions as ordered is deemed to have failed to prosecute the application, which is liable for dismissal.

p. 2

Legal principles established

#
  • An applicant who fails to file submissions as ordered is deemed to have failed to prosecute the application, which is liable for dismissal.
  • Dismissal for want of prosecution is warranted where there is delay, prejudice to the respondent, and no satisfactory explanation for inactivity.

Court orders

#
  1. 1.The Notice of Motion dated February 8, 2021 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

#

Legislation

  • Civil Procedure RulesSection (sic) 45(1)
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Rowlands Ndegwa and 4 Others v County Government of Nyeri and 3 Others; Agriculture, Fisheries and Food Authority & Another (Interested Parties)
    [2020] eKLR
  • Winnie Wanjiku Mwai v Attorney General & 3 Others
    [2016] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules (cited as 'Section (sic) 45(1)')

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kipsigis Teachers College v African Banking Co-operatiion Ltd (Environment & Land Case 19 of 2019) [2023] KEELC 129 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/129/eng@2023-01-19

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