Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 12"A" of 2013· [2023] KEELC 17132 (KLR)

Ndegwa & 2 others v Kang'ethe & 2 others

Environment and Land Court
4 May 2023
JMJohn M. Mutungi
1,733 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to revive a land suit dismissed for inaction, ruling that a seven-year delay with no explanation cannot be excused.

What this practically means

#

Executive summary

#
The plaintiffs/applicants moved the court by notice of motion dated November 16, 2021 under sections 1A, 1B and 3A of the Civil Procedure Act seeking to set aside orders dismissing their suit on December 20, 2016 for want of prosecution, with costs in the cause. They averred that neither they nor their advocates were served with the Notice to Show Cause, that they only learnt of the dismissal on October 25, 2021 at the court registry, and that the Covid-19 pandemic disrupted court functions. The 2nd defendant opposed, asserting inordinate and unexplained delay, noting the application was only filed on February 15, 2022 despite being drawn in November 2021, and that courts remained accessible during the pandemic. The 2nd and 3rd defendants relied on authorities on inordinate delay, including Mwangi S Kimenyi v Attorney General. The court noted the NTSC dated November 25, 2016 was addressed to the plaintiffs' advocates, that only the defendants' advocate attended the NTSC hearing, and that the suit had lain dormant for over 18 months before dismissal and over 5 years after dismissal before the application was filed. Holding that even absent service of the NTSC the plaintiffs offered no viable explanation for 5 years of inaction, and that Covid-19 did not excuse the delay since court services remained accessible, the court found the plaintiffs guilty of inordinate and inexcusable delay, declined to exercise its discretion in their favour, and dismissed the application with costs to the 2nd and 3rd defendants.

Key legal issues

#
01

Discretion to set aside dismissal for want of prosecution under Order 17 rule 2

Holding

Dismissal upheld; discretion declined because the plaintiffs' delay of over 5 years post-dismissal (7 years total) was inordinate and inexcusable, and no viable explanation was given even assuming lack of service of the NTSC

Reasoning

The court accepted the NTSC was addressed to plaintiffs' advocates and that plaintiffs did not attend. Even assuming no service, plaintiffs took no step for over 5 years after dismissal and only filed the application on 15/2/2022. The Covid-19 pandemic did not excuse the delay since court services remained accessible. Vigilance in prosecuting one's case is the plaintiff's own obligation.

02

What constitutes inordinate delay

Holding

Adopted the test in Mwangi S Kimenyi v Attorney General: inordinate delay has no precise measure but must be beyond acceptable limits in the prosecution of cases

Reasoning

The court relied on the respondents' cited authorities, adopting the litmus test that delay is inordinate where it leads to the inescapable conclusion that it is inexcusable, having regard to the circumstances, subject matter and explanation given. A delay of 7 years here plainly met that threshold.

p. 3

Legal principles established

#
  • A party who files suit has a duty and obligation to pursue its prosecution; failure to prosecute for over 5 years admits of no reasonable explanation
  • A defendant is entitled to have a suit against him determined without undue delay

Court orders

#
  1. 1.The Notice of motion dated November 16, 2021 is dismissed with costs to the 2nd and 3rd defendants

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 17 rule 2(1)
  • Civil Procedure RulesOrder 11

Cases cited (3)

  • David Bundi v Timothy Mwenda Muthee
    [2022] eKLR

    Court has unfettered discretion to reinstate where hearing date was not communicated and delay is explained and not inordinate

  • Nilesh Premchand Mulji Shah & another v MD Popat & others
    (2016) eKLR

    Where delay is inordinate and unexplained, applicant does not deserve discretion in his favour

  • Mwangi S Kimenyi v Attorney General & another
    (2014) eKLR

    Definition and litmus test of inordinate delay

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (application to set aside dismissal for want of prosecution)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ndegwa & 2 others v Kang'ethe & 2 others", Case Analysis (2023). Environment & Land Case 12"A" of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17132/eng@2023-05-04

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