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ELCPartially AllowedEnvironment & Land Case 26 of 2019· [2023] KEELC 16337 (KLR)

Ikuti & 2 others v Mbithuka & 6 others

Environment and Land Court
8 March 2023
TMT. W. Murigi
1,944 words in judgment
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The bottom line

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The Environment and Land Court reinstated a land suit dismissed for delay, ruling that genuine explanations for inaction outweigh procedural lapses.

What this practically means

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Executive summary

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The applicants, plaintiffs in a land dispute concerning plots in Ndiani adjudication section, sought by notice of motion dated May 11, 2022 to vacate an order of March 21, 2022 dismissing their suit for want of prosecution and to reinstate it, together with an interim prohibitory order against dealings with specified plots and costs. They argued they were not served with the notice to show cause, that delay was explained by settlement negotiations, lack of funds to instruct counsel, and delay by the Survey Office in issuing maps, and that the respondents would suffer no prejudice not compensable in damages. The respondents opposed, asserting they were never served with summons despite court direction, that the delay was unexplained, and that reinstatement would render them homeless. The court, ruling on the sole issue of reinstatement, set out the framework in Order 17 rule 2 of the Civil Procedure Rules and applied Ivita v Kyumbu and the Ecobank Ghana principles. It held that Order 17 rule 2(1) does not require personal service, notice in writing sufficing, and found the applicants' explanation for delay reasonable and plausible. Invoking Essanji v Solanki, it held the suit should be heard on its merits. The dismissal was vacated and a timetable issued for service of summons, filing of defence and compliance with Order 11. The interim prohibitory order and costs were not addressed. Ruling delivered on March 8, 2023 by T. W. Murigi J at Makueni.

Key legal issues

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01

Whether the suit dismissed for want of prosecution should be reinstated

Holding

The application was allowed; the dismissal order was vacated so the suit could be heard on its merits

Reasoning

The court applied the Ivita v Kyumbu test and the Ecobank Ghana principles on delay and prejudice. Though acknowledging significant delay, it found the applicants' explanations - out-of-court settlement attempts, lack of funds to instruct counsel and non-availability of survey maps - reasonable and plausible. Guided by Essanji & Another v Solanki, it held that lapses should not debar a litigant from pursuing their rights, and reinstatement would prevent prejudice to the applicants.

02

Whether service of the notice to show cause under Order 17 rule 2(1) is required before dismissal for want of prosecution

Holding

The provision does not require personal service; notice in writing can be effected through the cause list or Judiciary/Law Society websites, and the court confirmed the parties were served

Reasoning

The court construed Order 17 rule 2(1), noting its wording is 'give notice in writing' rather than 'serve notice'. It held that such notice may be effected through the cause list or the Judiciary and Law Society websites, and stated that the court had confirmed the parties were served with the notice to show cause before the dismissal.

p. 4

Legal principles established

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  • A party may apply to court for reinstatement after dismissal of a suit under Order 17
  • The test for reinstatement of a suit dismissed 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 order issued on March 21, 2022 dismissing this suit be and is hereby vacated
  2. 2.The plaintiff is directed to serve the defendant with the summons to enter appearance and the plaint within the next 7 days from the date hereof
  3. 3.The defendants shall file and serve their statement of defence within 14 days after service
  4. 4.Upon the exchange of documents, the parties shall comply with Order 11 of the CPC within 30 days from the date hereof

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 12 Rule 7; Order 45 Rule 1; Order 51 Rule 1; Order 17 rule 2; Order 11
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (3)

  • Ivita v Kyumbu
    [1975] eKLR

    Test for reinstatement: whether delay is prolonged and inexcusable, and whether justice can be done despite the delay

  • Ecobank Ghana Limited v Triton Petroleum Co Limited & 5 others
    [2018] eKLR

    Guiding principles: whether delay is inordinate, excusable, and whether prejudice or unfair trial results

  • Essanji & Another v Solanki
    [1968] EA 218

    Substance of disputes should be decided on merits; lapses should not debar a litigant

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Orders 12 Rule 7, 45 Rule 1 and 51 Rule 1 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

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, "Ikuti & 2 others v Mbithuka & 6 others", Case Analysis (2023). Environment & Land Case 26 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16337/eng@2023-03-08

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