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ELCAllowedEnvironment & Land Case 26 of 2019· [2023] KEELC 19038 (KLR)

Ndegwa v Kirui & others

Environment and Land Court
26 July 2023
CMCharles G Mbogo
1,769 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

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A Kenyan court reinstated a land suit dismissed after the plaintiff's advocate arrived five minutes late, showing courts will forgive delays with genuine explanations.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Narok (CG Mbogo, J) determined a Notice of Application dated June 21, 2023 by the plaintiff, Juan Ndegwa, seeking review and setting aside of the May 24, 2023 order dismissing his suit for want of prosecution, reinstatement of the suit for trial, and costs. The dismissal arose when the plaintiff's advocate, Mr Edward Kariuki Muthee, failed to attend court at the 10.30 am time allocation despite having indicated readiness at the call over; he deposed that the public service vehicle he travelled in from Nakuru suffered mechanical breakdown, and he arrived at 10.35 am after the suit had been dismissed. The 43rd defendant, Charles Ndungu Wachira, opposed, contending the plaintiff had previously caused adjournments, that litigation must come to an end, and that the property had been developed and remained in the defendants' possession. The plaintiff replied that most defendants (the 1st, 2nd, 6th, 10th, 11th, 14th, 19th, 20th, 21st, 23rd, 32nd, 35th, 39th, 43rd, 51st and 53rd) had not opposed the application. Relying on Order 12 Rule 7 of the Civil Procedure Rules, the court held reinstatement is discretionary, that the advocate's explanation provided sufficient cause, and that no prejudice would be suffered by the defendants. The court allowed the application, set aside the May 24, 2023 dismissal orders, reinstated the suit for hearing on a priority basis, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether the plaintiff satisfied the court to reinstate a suit dismissed for want of prosecution

Holding

Yes; the advocate's explanation of transport breakdown constituted sufficient cause, and the application was unopposed by most defendants with no prejudice shown.

Reasoning

The court found the advocate's sworn explanation - that a public service vehicle he travelled in from Nakuru suffered mechanical challenges, causing him to arrive at 10.35 am after dismissal - provided sufficient cause. He had been ready to proceed with one witness at the call over. Most defendants did not oppose, and no prejudice to defendants was identified.

p. 3

Legal principles established

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  • Reinstatement of a suit dismissed for want of prosecution is discretionary under Order 12 Rule 7 of the Civil Procedure Rules, exercisable upon such terms as may be just.
  • Delay justifying dismissal must be inordinate, unreasonable and inexcusable; delay from a justifiable cause does not warrant dismissal.

Court orders

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  1. 1.The orders of the court issued on 24th May 2023 are hereby set aside
  2. 2.The suit herein is reinstated and the same to proceed for hearing on a priority basis
  3. 3.The costs of this application be in the cause

Authorities

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Legislation

  • Environment & Land Court ActSections 3, 4, 13
  • Civil Procedure ActSections 1A, 1B, 3A, 80
  • Civil Procedure RulesOrder 10 Rule 11; Order 12 Rule 7; Order 36 Rule 10; Order 50 Rule 6; Order 51 Rule 10(2)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (1)

  • Wachira Karani versus Bildad Wachira
    [2016] eKLR

    Sufficient explanation of advocate's late arrival justifying exercise of discretion to reinstate

Jurisdiction invoked
Sections 3, 4 and 13 of the Environment & Land Court Act; Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 12 Rule 7 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, "Ndegwa v Kirui & others", Case Analysis (2023). Environment & Land Case 26 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19038/eng@2023-07-26

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