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ELCPartially AllowedEnvironment and Land Appeal E108 of 2021· [2023] KEELC 20589 (KLR)

Murithi & another v Marete

Environment and Land Court
11 October 2023
CNCK NZILI
2,213 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a land suit dismissed for delay, ruling courts must weigh whether justice is still possible before throwing cases out.

What this practically means

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Executive summary

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The appellants, plaintiffs before the trial court, had sued the respondent claiming certain parcels of land (LR Abothuguchi/Kithirune 320, 891 and 691) were held in customary trust by the late registered proprietor for his brothers, and sought a declaration and transfer. The respondent denied the trust, pleaded limitation and res judicata based on Meru HC Succession Case No. 426 of 2008, and filed a preliminary objection. The suit was dismissed for want of prosecution on 14.6.2021 after a notice to show cause. An application dated 30.6.2021 for reinstatement under Order 17 Rule 6 of the Civil Procedure Rules was rejected by the trial court (SPM S. Ndegwa) in a ruling of 23.8.2021, which found no satisfactory explanation for the delay and no new grounds for review. On appeal, CK Nzili J rehearsed the record as required on a first appeal under Section 72 of the Civil Procedure Act and identified two issues: entitlement to review and whether the trial court correctly exercised its discretion. The court held that although the delay exceeded one and a half years and the Covid-19 explanation was weak, the trial court failed to address whether justice could still be done despite the delay (the Ivita v Kyumbu test) and did not weigh the parties' respective prejudice; the respondent identified no prejudice from reinstatement. The discretion was therefore not exercised judiciously. The appeal was allowed and the suit reinstated for hearing on a priority basis, with costs of the appeal awarded to the respondent in any event.

Key legal issues

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01

Entitlement to review/reinstatement of a suit dismissed for want of prosecution

Holding

The trial court misdirected itself by failing to consider whether justice could still be done despite the delay and by not weighing the parties' respective prejudice; the discretion was therefore not exercised judiciously and the dismissal was reversed.

Reasoning

The trial court found the Covid-19 explanation implausible since court operations resumed in July 2020, and found no new grounds for review. However, it did not apply the Ivita v Kyumbu test of whether justice could still be done despite the delay, and the respondent identified no prejudice from reinstatement. The appellants moved within 15 days of dismissal and showed willingness to prosecute. Justice must be justice to both parties.

02

Correct exercise of discretion under Order 17 Rule 6 of the Civil Procedure Rules

Holding

The discretion under Order 17 Rule 6 must be exercised judiciously, considering the length of delay, explanation, prejudice, and whether justice is achievable despite inordinate delay.

Reasoning

Relying on Rose Makokha Mteka and the authorities cited there (Argan Wekesa Okumu, Ivita v Kyumbu, Nilesh Premchand Mulji Shah, Naftali Opondo Onyango, Mwangi S. Kaimenyi), the court restated the factors governing reinstatement applications and held the trial court omitted the central Ivita inquiry.

p. 3

Legal principles established

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  • On a first appeal the court must rehearse and reappraise the lower court record and reach independent findings on law and facts
  • In reinstating a suit dismissed for want of prosecution, the court must consider whether justice can still be done despite the delay and weigh prejudice to both parties
  • The discretion to dismiss a suit for want of prosecution must be exercised judiciously, striving to sustain a suit where possible

Court orders

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  1. 1.Appeal allowed
  2. 2.Suit reinstated for hearing on a priority basis
  3. 3.Costs of the appeal to the respondent in any event
On appeal from
Senior Principal Magistrate's Court at Githongo (Githongo ELC No. 90 of 2018)
Githongo ELC No. 90 of 2018
Jurisdiction invoked
First appeal under Section 72 of the Civil Procedure Act (appeal against ruling dismissing application for reinstatement/review)

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, "Murithi & another v Marete", Case Analysis (2023). Environment and Land Appeal E108 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20589/eng@2023-10-11

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