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ELCDismissed· [2024] KEELC 919 (KLR)

TIBLESTE TECLEMARIAM v HIDAT TECLE ANDEMARIAM

Environment and Land Court
22 February 2024
LMLUCY N. MBUGUA
753 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to revive a suit the plaintiff let lapse, because they couldn't prove they had served court summons on the defendant.

What this practically means

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Executive summary

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The plaintiff sued in September 2022 in the Environment and Land Court at Nairobi. On 7.6.2023 the court directed the plaintiff to serve summons to enter appearance by 7.7.2023, failing which the suit would stand abated, and set a pre-trial directions mention for 21.9.2023. The suit was marked abated on 21.9.2023 after the plaintiff failed to attend. The plaintiff then applied by notice of motion dated 1.11.2023 for stay of the orders of 21.9.2023, their review, and reinstatement of the suit, arguing that defence counsel had misled the court as summons had been taken out and served. The defendant opposed via grounds of opposition dated 5.12.2023, contending service was not effected per the 7.6.2023 orders and that the application was not filed timeously. The court framed the sole issue as whether the abated suit should be revived, holding that a court has jurisdiction to revive an abated suit if sufficient cause is proffered. Examining both the CTS portal and the physical file, the judge found no affidavit of service of summons filed by 21.9.2023 or thereafter; the only affidavit of service filed (on 5.11.2023) related to the current application. The court noted the self-executing nature of the 7.6.2023 orders, citing Ace Engineering & Building Co. Ltd v National Bank of Kenya Ltd and the Supreme Court's Vulcan Lab Equipment decision, observed that counsel gave no explanation for their absence on 21.9.2023, and that no explanation was proffered for the delay in filing the application. Following its own decision in Moschion v Mwangi, the court found no sufficient reasons to warrant reinstatement and dismissed the application dated 1.11.2023 with costs to the defendant.

Key legal issues

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Whether the abated suit should be revived

Holding

No - sufficient cause was not demonstrated; the application was dismissed

Reasoning

The plaintiff bore the onus of showing compliance with the 7.6.2023 directions on service of summons. No affidavit of service of summons existed on the file by 21.9.2023 or thereafter. Counsel gave no explanation for absence on 21.9.2023, and no explanation was offered for the delay in filing the application in November 2023. Self-executing orders had put the plaintiff on notice of sanctions for non-compliance, and the court's case management directions had to be given effect.

p. 1

Legal principles established

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  • A court has jurisdiction to revive an abated suit if sufficient cause is proffered
  • Self-executing orders are given by courts to meet time standards
  • The right to be heard is sacrosanct but a party is only entitled to a reasonable opportunity to be heard

Court orders

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  1. 1.The application dated 1.11.2023 seeking stay, review and reinstatement of the suit is dismissed with costs to the defendant

Authorities

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Cases cited (3)

  • Ace Engineering & Building Co. Ltd v National Bank of Kenya LTD
    [2019] eKLR
  • Vulcan Lab Equipment Ltd v Ethics and Anti Corruption Commission & another
    (Application E012 of 2021) [2023] KESC 70 (KLR) (Civ) (8 September 2023) (Ruling)
  • Moschion v Mwangi
    (Environment & Land Case 350 of 2018) [2023] KEELC 17144 (KLR) (27 April 2023) (Ruling)
Jurisdiction invoked
Inherent jurisdiction of the court to revive an abated suit / review of its own orders (not expressly cited in judgment)

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, "TIBLESTE TECLEMARIAM v HIDAT TECLE ANDEMARIAM", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/919/eng@2024-02-22

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