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ELCDismissedNot stated in extract· [2024] KEELC 1051 (KLR)

Saptet Farm Company Limited v SK Soi Company Limited (Environment & Land Case 20 of 2006) [2024] KEELC 1051 (KLR)

Environment and Land Court
29 February 2024
5,842 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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A Kericho court refused to revive a land suit dismissed after 17 years of inaction, holding that litigants cannot blame their advocates for their own failure to follow up.

What this practically means

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Executive summary

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This was an application under Order 12 Rule 7 of the Civil Procedure Rules seeking to set aside orders of 12th July 2023 dismissing the Applicant's suit, filed in 2006, for want of prosecution, and to reinstate the suit for hearing on merit. The Applicant attributed its non-attendance to lack of notice by its former advocate and to a mistaken belief that out-of-court settlement negotiations, evidenced partly by payments of Kshs. 2,550,000/=, had compromised the suit. The Respondent opposed, asserting the Applicant's indolence over 17 years, numerous adjournments and non-appearances, and contending that the payments were of rent arrears, not settlement. The court framed three issues: whether sufficient ground existed to set aside the dismissal; whether the suit should be reinstated; and costs. Applying Order 12 Rule 7 and the principles in Esther Wamaitha Njihia v Safaricom, Mbogo v Shah, B1-Mach Engineers, Parimal v Veena and Richard Nchapi Leiyagu, the court held that sufficient cause was not established. The chronology showed the Applicant and its advocate had been casual in prosecuting the suit; a litigant cannot merely blame its advocate but must demonstrate follow-up steps, none of which were shown. The delay from 2006 to 2023 was unexplained and inexcusable, and the Applicant was found to have deliberately failed to prosecute its case. The application was held to be an afterthought and an abuse of the court process. Both the setting-aside and reinstatement prayers failed, and the application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether sufficient cause was established to set aside the dismissal for want of prosecution

Holding

No sufficient cause was established; the Applicant's 17-year delay was inexcusable and deliberate

Reasoning

The court traced the chronology from filing in 2006 to dismissal in 2023, noting numerous adjournments, non-appearances and a 2.5-year period of inactivity during purported negotiations. The Applicant took no tangible steps to follow up with its advocate or the registry, merely blaming the former advocate. Sufficient cause requires absence of negligence or inaction, which was not demonstrated.

p. 9
02

Whether blame can be laid on a former advocate to excuse non-prosecution

Holding

No; a suit belongs to the litigant, who must follow up with its advocate

Reasoning

Relying on B1-Mach Engineers Limited v James Kahoro Mwangi, the court held that inaction by an advocate without explanation is not an excusable mistake; the client has a duty to pursue the matter and a remedy against a negligent advocate. The Applicant wrote no letters to its advocate or the registry and gave no explanation of follow-up steps.

p. 8
03

Whether the application for reinstatement should be granted

Holding

The application was an afterthought and an abuse of court process; both prayers failed

Reasoning

Having found deliberate failure to prosecute and grave prejudice to the Respondent, the court held the application to be an afterthought and a waste of judicial time. Balancing the rights of both parties and the interests of justice, the discretion was exercised against the Applicant, and the reinstatement prayer necessarily failed with the dismissal prayer.

p. 10

Legal principles established

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  • A litigant has a continuing duty to follow up on the progress of its case and cannot simply blame its advocate's inaction
  • The discretion to set aside an ex parte order or dismissal is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the cause of justice

Court orders

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  1. 1.The Application dated 24th October, 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 3(1)
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure ActSections 1A, 1B, 3A
  • Constitution of KenyaArticle 159; Article 159(2)(b)

Cases cited (15)

  • Samuel M. Wang'ombe v Charles Muriithi Nyamu
    [2019] eKLR
  • John Nahason Mwangi vs Kenya Finance Bank Limited (in liquidation)
    [2015] eKLR
  • East Africa Vento Co. Ltd v Agricultural Finance Coop Ltd & another
    [2019] eKLR
  • Hanson Muidi Mutula & 8 others v Kennedy Mutua Ngunu & 3 others
    [2022] eKLR
  • Muambi v National Social Security Fund
    [2004] eKLR
  • Ronald Mackenzie vs. Damaris Kiarie
    [2021] eKLR
  • Elizabeth Wakari Njiru vs. Kamuri Mubuta & 6 others
    [2019] eKLR
  • Ruga Distributors Limited vs. Nairobi Bottlers Limited
    [2015] eKLR
  • Savings & Loans Limited vs. Susan Wanjiru Muritu
    Nairobi (Milimani) HCCC No. 397 of 2002
  • Duale Mary Ann Gurre vs. Amina Mohamed Mohamood & Another
    [2014] eKLR
  • Esther Wamaitha Njihia & 2 others vs. Safaricom Ltd
    [2014] eKLR
  • Mbogo vs. Shah
    [1968] EA 93
  • B1-Mach Engineers Limited vs. James Kahoro Mwangi
    (2011) eKLR
  • Parimal vs Veena
    2011 3 SCC 545
  • Richard Nchapi Leiyagu vs. Independent Electoral & Boundaries Commission & 2 others
    [2014] eKLR
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules; Sections 1A, 3A of the Civil Procedure Act; Article 159 of the Constitution

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, "Saptet Farm Company Limited v SK Soi Company Limited (Environment & Land Case 20 of 2006) [2024] KEELC 1051 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1051/eng@2024-02-29

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