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ELCDismissedEnvironment & Land Case 149 of 2018· [2023] KEELC 21160 (KLR)

Choyo v Tsuma

Environment and Land Court
1 November 2023
SKS. M. Kibunja
1,353 words in judgment
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The bottom line

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A Mombasa court refused to revive a land case the plaintiff ignored for four years, ruling that blaming your lawyer is not enough to escape blame yourself.

What this practically means

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Executive summary

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The plaintiff Lewa Choyo moved the Environment and Land Court at Mombasa by notice of motion dated 16th January 2023 seeking reinstatement of his suit, dismissed for want of prosecution on 28th June 2022, and its transfer to ELC Kwale. The suit, commenced as Mariakani PMCC No. 276 of 2014 seeking vacant possession and a mandatory injunction over unregistered customary land, was transferred to the ELC in 2016. After the file was transmitted on 13th June 2018, the plaintiff took no steps to prosecute the suit. The court issued notices under Order 17 Rule 2 of the Civil Procedure Rules and dismissed the suit on 28th June 2022, with costs to the defendant. The plaintiff blamed his former advocate's ineptitude, deposing that he could not reach counsel. The defendant opposed, asserting the plaintiff was indolent, had used the pending suit to threaten the local administration, and that the suit land was now subject to the Land Adjudication Act adjudication process, which would resolve the parties' interests. The court framed three issues: reinstatement, transfer, and costs. It found the plaintiff had taken no steps for over four years, had not attended court or responded to the show-cause notices, and had produced no evidence showing he was free from blame for the delay. The defendant's claim that the land was under adjudication was undisputed. The court held the application lacked merit and dismissed it with costs under section 27 of the Civil Procedure Act, no good cause existing to depart from the rule that costs follow the event.

Key legal issues

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01

Whether the plaintiff made out a case for reinstatement of the suit dismissed for want of prosecution

Holding

Application dismissed; plaintiff failed to demonstrate he was blameless for the delay since 2018 and had not disputed that the suit land is now under adjudication.

Reasoning

The record showed no activity after 13th June 2018 and the plaintiff did not attend or respond to Order 17 Rule 2 notices. His claim that his former advocate was at fault was unsupported by evidence of his own diligence in following up. The defendant's assertion that the land is under adjudication was undisputed, supporting upholding the dismissal.

02

Costs of the application

Holding

Costs awarded to the defendant under section 27 of the Civil Procedure Act.

Reasoning

The court found no good cause to depart from the general rule that costs follow the event, applying section 27 of the Civil Procedure Act.

p. 3

Legal principles established

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  • Costs follow the event under section 27 of the Civil Procedure Act unless the court for good cause orders otherwise.
  • A litigant blaming counsel's ineptitude for dismissal for want of prosecution must place evidence before the court showing he was free from blame.

Court orders

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  1. 1.The plaintiff's notice of motion dated 16th January 2023 is without merit.
  2. 2.The said application is hereby dismissed with costs.

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure Actsection 27
  • Land Adjudication Actchapter 284 of Laws of Kenya
Jurisdiction invoked
Environment and Land Court jurisdiction over the transferred suit (Mariakani PMCC No. 276 of 2014 transferred via Mombasa ELC Misc Appl No. 22 of 2016)

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, "Choyo v Tsuma", Case Analysis (2023). Environment & Land Case 149 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21160/eng@2023-11-01

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