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 56 of 2017· [2023] KEELC 19064 (KLR)

Kaloki & 4 others v Makenzie & 2 others

Environment and Land Court
26 July 2023
COCA Ochieng
2,005 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court refused to reinstate a land suit dismissed because the plaintiffs ignored a court order to set it down for hearing within sixty days.

What this practically means

#

Executive summary

#
The plaintiffs moved the court by Notice of Motion dated March 27, 2023 under Order 12 Rule 7, Order 51(1) and Order 45 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside the orders of March 21, 2023 dismissing their suit for want of prosecution and to reinstate the suit. They argued the dismissal was attributable to the court's failure to give them a hearing date, that the matter had been slated only for directions on the Interested Parties' application of November 10, 2022, and that mistake of counsel should not be visited on the client. The 2nd Defendant and the Interested Parties opposed, contending the plaintiffs were indolent litigants who had ignored the court's ruling of March 21, 2022 directing them to set down the suit for hearing within sixty days failing which it would stand dismissed. The court framed a single issue: whether the suit should be reinstated. It reproduced its March 21, 2022 ruling, held the plaintiffs were bound by the sixty-day order, found no demonstration that they had sought an early hearing date, and noted that non-compliance attracts sanctions including dismissal under paragraph 43 of the ELC Practice Directions. The application was dismissed with costs. The underlying suit remains dismissed for want of prosecution.

Key legal issues

#
01

Whether the suit dismissed for want of prosecution on March 21, 2023 should be reinstated

Holding

Application dismissed; plaintiffs failed to comply with the March 21, 2022 order to set down the suit within 60 days and did not demonstrate efforts to secure a hearing date

Reasoning

The court's March 21, 2022 ruling expressly directed that the suit be set down for hearing within sixty days failing which it would stand dismissed. The record showed mention dates fixed in the registry but no indication the plaintiffs sought a hearing date. The dismissal on a date slated for directions on another application did not excuse non-compliance, as the court could refer to its prior orders. Practice Directions permit dismissal as a sanction for non-compliance.

Legal principles established

#
  • A litigant is bound by orders of the court and cannot extricate themselves from non-compliance by blaming the court's diary
  • Non-compliance with court directions attracts sanctions including dismissal of a suit, per ELC Practice Directions

Court orders

#
  1. 1.The Plaintiffs' Notice of Motion dated March 27, 2023 seeking reinstatement of the suit is dismissed
  2. 2.Costs of the application to the Defendants/Interested Parties

Authorities

#

Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51(1)
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 11
  • Civil Procedure Actsections 1A, 1B and 3A
  • Constitution of KenyaArticles 50 and 159(2)(d)
  • Land Registration Actsection 24(a)
  • Environment and Land Court Practice Directionsparagraph 43

Cases cited (4)

  • Gold Lida Limited Vs NIC Bank Limited & 2 Others
    [2018] eKLR

    Principles on reinstatement of a suit dismissed for want of prosecution

  • Bilha Ngonyo Isaac v Kembu Farm Limited & Another
    [2018] eKLR

    Echoes the decision in Shah v Mbogo on discretionary setting aside

  • Shah Vs Mbogo & Another
    [1967] EA 116

    Discretion to set aside ex parte orders/judgment to avoid injustice

  • CMC Holdings Limited vs Nzioki
    [2004] 1 KLR 173

    Discretion to set aside ex parte order exists to ensure a litigant does not suffer injustice from excusable mistake or error

Jurisdiction invoked
Inherent jurisdiction under sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7, Order 51(1) and Order 45 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kaloki & 4 others v Makenzie & 2 others", Case Analysis (2023). Environment & Land Case 56 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19064/eng@2023-07-26

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