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ELCAllowedNot stated in the judgment (interlocutory application dated August 8, 2022 in a suit filed August 10, 2011)· [2023] KEELC 197 (KLR)
Bantus Investment Limited v Kenya Wildlife Service (Environment & Land Case 239 of 2011) [2023] KEELC 197 (KLR)
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·~8 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This was a Notice of Motion dated August 8, 2022 by the plaintiff seeking to set aside the orders of November 2, 2018 dismissing its suit for want of prosecution, and to have the suit proceed on merits. The application invoked Article 50 of the Constitution, Sections 1A, 1B, 3 and 34 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, on grounds that no notice of the November 2, 2018 dismissal was served, violating the right to fair trial and natural justice. The defendant, Kenya Wildlife Service, opposed, showing a history of prolonged inactivity: the suit filed in 2011 was never set down; a 2016 Notice to Show Cause was set aside on conditions the plaintiff failed to meet; the suit was dismissed in 2016, reinstated in March 2018 after a review application, then the plaintiff went dormant again until new advocates stumbled on the November 2, 2018 dismissal in 2022 and filed the present application over three years later. The court reviewed the reinstatement jurisprudence, including Ivita v Kyumbu, Mwangi S Kimenyi, Utalii Transport, Essanji v Solanki, Philip Chemwolo and Belinda Murai, distilling the test as whether the delay is prolonged and inexcusable, whether justice can still be done despite the delay, and whether reinstatement would prejudice the parties. Finding no evidence of service on the previous advocates, possible miscommunication leading to the change of advocates, and the emotive nature of land matters, the court found the delay excuse plausible, allowed the application, set aside the November 2, 2018 orders, and directed costs to be in the cause.
Key legal issues
#01
Whether the dismissal of November 2, 2018 should be set aside despite the delay
Holding
The application was allowed; the court found the delay excuse plausible, noting possible non-service and the emotive nature of land matters
Reasoning
The court applied the Ivita v Kyumbu test as restated in Mwangi S Kimenyi, weighing prolonged and inexcusable delay against the interests of substantive justice. It found from the record there was no evidence of service on the previous advocates, so the dismissal may have occurred without notice. A change of advocates suggested miscommunication between applicant and former counsel. Balancing prejudice and the principle that disputes should be decided on merits, the court found the delay plausible and reinstated the suit.
p. 4
Legal principles established
#- The test for reinstatement of a suit dismissed for want of prosecution is whether the delay is prolonged and inexcusable, whether justice can still be done despite the delay, and whether any party will be prejudiced by reinstatement
- Errors or blunders by an advocate should not ordinarily be visited upon the client absent fraud or intention to overreach
Court orders
#- 1.The application dated August 8, 2022 is allowed as prayed
- 2.The Orders of November 2, 2018 dismissing the suit are set aside and the suit proceeds on merits
- 3.Costs to be in the cause
- Jurisdiction invoked
- Article 50 of the Constitution; Sections 1A, 1B, 3 & 34 of the Civil Procedure Act; Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bantus Investment Limited v Kenya Wildlife Service (Environment & Land Case 239 of 2011) [2023] KEELC 197 (KLR)", Case Analysis (2023). Not stated in the judgment (interlocutory application dated August 8, 2022 in a suit filed August 10, 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/197/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.