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ELCDismissedNot stated in the extract (Suit dated 21st July 2010, Nakuru)· [2023] KEELC 805 (KLR)

Kinyanjui v Municipal Council of Nakuru & 2 others (Environment & Land Case 53 of 2013) [2023] KEELC 805 (KLR)

Environment and Land Court
16 February 2023
LOL. A. Omollo
5,861 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Nakuru court refused to revive a land case dismissed after three years of inaction, ruling that blaming your lawyer is not enough to reinstate a suit.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (L. A. Omollo, J) on the Plaintiff/Applicant's Notice of Motion dated 12th July 2022 seeking, under Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 3A, 63E and 80 of the Civil Procedure Act, to set aside orders of 6th July 2022 dismissing his 2010 land suit (over Nakuru Municipality Block 1/996, formerly Racetrack Plot B 511) for want of prosecution and to reinstate the suit. The applicant blamed his advocates for failing to attend the notice-to-show-cause hearing and to inform him of it, and relied on authorities that a mistake of counsel should not be visited on an innocent client. All three Defendants opposed, citing over three years of inaction since 9th May 2019, unpaid adjournment costs, and the applicant's failure to respond to the Notice to Show Cause. The court framed two issues: whether to set aside the dismissal and reinstate the suit, and costs. Applying Ivita v Kyumbu and Edney Adaka Ismail v Equity Bank, the judge held that the applicant showed no tangible personal steps to prosecute the suit, that the three-year delay was prolonged, inordinate and inexcusable, and that reinstatement would not serve the overriding objective or Article 159(2)(b). The application was dismissed with costs to the Defendants on 16th February 2023.

Key legal issues

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01

Whether to set aside dismissal for want of prosecution and reinstate the suit

Holding

Application dismissed; three-year delay was prolonged, inexcusable and attributable to the plaintiff's inertia; reinstatement would not serve the overriding objective

Reasoning

The suit filed in 2010 was last in court on 9th May 2019 and no step was taken for over three years. The plaintiff was served with a Notice to Show Cause but neither he nor his counsel appeared, and no affidavit explanation was filed. The court found mere blame of counsel insufficient, costs orders of 9th May 2019 uncomplied with, and held the delay inordinate and inexcusable, contrary to the overriding objective and Article 159(2)(b).

p. 12
02

Costs of the application

Holding

Costs follow the event under Section 27 of the Civil Procedure Act and were awarded to the Defendants

Reasoning

Applying Section 27 of the Civil Procedure Act, the general rule is that the successful party should ordinarily be awarded costs unless the court for good reason directs otherwise; the application having failed, costs went to the Defendants.

p. 12

Legal principles established

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  • A party seeking to set aside dismissal for want of prosecution must show sufficient reason and tangible personal steps, not merely blame counsel
  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can nonetheless be done

Court orders

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  1. 1.The application dated 12th July 2022 is dismissed with costs to the Defendants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159; Article 159 2(b)
  • Civil Procedure ActSections 1A, 1B, 3A, 27, 63E, 80
  • Civil Procedure Rules, 2010Order 12 Rule 6; Order 12 Rule 7; Order 17 Rule 2; Order 9 Rule 9(a) and (b) and Rule 10; Order 51 Rule 1
  • Limitation of Actions ActSection 7 (Cap. 22)
  • Environment and Land Court ActSection 3(1)
  • The Rating ActCap 267

Cases cited (14)

  • Philip & Another Vs Augustine Kubende
    1982-88 KLR 103
  • CMC Holdings Ltd Vs James Mumo Nzioka
    [2004] KLR 173
  • Winnie Wambui Kibinge & 2 Others Vs Match Electricals Limited
    Civil Case No. 222 of 2010
  • Wanjiku Kamau Vs Tabitha Kamau & 3 Others
    [2014] eKLR
  • Lee G Muthoga vs Habib Zurich Finance (K) Limited & another
    Civil Application No. Nairobi 236 of 2009
  • Wachira Karani Vs Bildad Wachira
    Civil Suit No. 101 of 2011 [2016] eKLR
  • Ivita Vs Kyumbu
    [1984] KLR 441
  • Onyango Oloo Vs Attorney General
    [1986-1989] EA 456
  • Julius Kibiwott Tuwei Vs Reuben Argut & 7 Others
    [2022] eKLR
  • Josphat Oginda Sasia Vs Wycliffe Wabwile Kiiya
    [2022] eKLR
  • Edney Adaka Ismail Vs Equity Bank Limited
    [2014] eKLR
  • Tana and Athi Rivers Development Authority Vs Jeremiah Kimigho Mwakio & 3 others
    [2015] eKLR
  • Thathini Development Company Limited Vs Mombasa Water & Sewerage Company & another
    [2022] eKLR
  • Re Jones
    [1870], 6 Ch. App 497
Jurisdiction invoked
Article 159 of the Constitution; Sections 3A, 63E and 80 of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Kinyanjui v Municipal Council of Nakuru & 2 others (Environment & Land Case 53 of 2013) [2023] KEELC 805 (KLR)", Case Analysis (2023). Not stated in the extract (Suit dated 21st July 2010, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/805/eng@2023-02-16

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