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ELCDismissedEnvironment and Land Case Civil Suit 837 of 2015· [2023] KEELC 19028 (KLR)
Ahero Supermarket Limited v Piedmont Investment Limited & 2 others
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The plaintiff's suit against the defendants, filed in 2009, was dismissed on March 22, 2017 for want of prosecution after a notice to show cause under Order 17 rule 2 of the Civil Procedure Rules. The plaintiff had taken no steps since November 22, 2010, when it was indulged and given 30 days to file its bundle of documents, which it never did. By a notice of motion dated February 7, 2023, brought under Section 3A of the Civil Procedure Act and Order 51 rules 1 and 4 of the Civil Procedure Rules, the plaintiff sought to set aside the dismissal, arguing that the suit concerned property worth over Kshs 20,000,000 and that it had already paid the 1st defendant's costs, so reinstatement would cause no prejudice. The 1st defendant opposed, citing inordinate delay, laches and abuse of process. Okong'o J held that an order dismissing a suit after a notice to show cause can only be set aside on appeal to the Court of Appeal or by an application for review; the application before the court was not for review, and Order 17 rule 2 confers no power to set aside such an order. The inherent jurisdiction under Section 3A was also unavailable because the plaintiff failed to show that setting aside the order was necessary for the ends of justice or to prevent abuse of the court process. The application was dismissed with costs to the 1st defendant.
Key legal issues
#01
Whether the court can set aside its own dismissal order under Section 3A of the Civil Procedure Act
Holding
No; the proper avenues are appeal or review, and the inherent jurisdiction was not established as necessary for the ends of justice
Reasoning
The suit was dismissed under Order 17 rule 2(1) after the parties were heard on a notice to show cause. The court held that such an order is only revisitable on appeal or by review. The application before it was not for review, and Order 17 rule 2 confers no setting-aside power. Section 3A was unavailable because the plaintiff did not demonstrate that setting aside was necessary for the ends of justice or to prevent abuse of process.
p. 2
Legal principles established
#- An order dismissing a suit for want of prosecution after a notice to show cause under Order 17 rule 2 can only be set aside on appeal or by way of review, not by a fresh application under Section 3A
Court orders
#- 1.The notice of motion application dated February 7, 2023 is dismissed
- 2.Costs of the application to the 1st defendant
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and Order 51 rules 1 and 4 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahero Supermarket Limited v Piedmont Investment Limited & 2 others", Case Analysis (2023). Environment and Land Case Civil Suit 837 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19028/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.