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ELCDismissed· [2024] KEELC 1220 (KLR)

Lelei & 2 others v Kimetto & 30 others (Environment & Land Case 143 of 2017) [2024] KEELC 1220 (KLR)

Environment and Land Court
7 March 2024
4,273 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a late attempt to revive a land suit, ruling that delays without genuine excuse cannot be forgiven.

What this practically means

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Executive summary

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The Applicants, whose suit was dismissed for want of prosecution on 17th May 2022, filed a Notice of Motion under Order 12 Rule 7, Order 22 Rule 25 (sic) and Section 3A of the Civil Procedure Act seeking stay of execution, review, variation and/or setting aside of the dismissal order and reinstatement of the suit. They attributed their non-attendance to their advocate's inadvertent failure to diarize the mention date, and explained that proceedings had been held in abeyance pending completion of Kericho High Court Succession Cause No. 1 of 2007 and mediation over subdivision of the land. The Respondents opposed, characterising the application as reactionary, an abuse of process and prompted only by service of a Party and Party Bill of Costs on 23rd May 2023, one year after dismissal. The court framed three issues: whether the conditions for stay of execution were met, whether the dismissal order should be set aside and the suit reinstated, and what orders should issue. The court first noted that the Applicants failed to file written submissions as directed, demonstrating inertia and lack of interest, and on that basis dismissed the main motion. In the alternative, it held that the dismissal was a negative order incapable of execution, so no stay could issue. On setting aside, it found the Applicants guilty of laches and inordinate delay - the application being filed one year and six days after dismissal - and deliberately failing to prosecute their case. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Applicants discharged the conditions for stay of execution of the dismissal order

Holding

The application for stay fails because the order of 17th May 2022 dismissing the suit was a negative order incapable of execution.

Reasoning

The court relied on the definition of a decree holder under Section 2 of the Civil Procedure Act, which refers to an order capable of execution. Since the dismissal order did not direct the Applicants to do anything, abstain from anything or pay any sum, it was incapable of execution, and following Sonalux Limited v Barclays Bank of Kenya Limited no stay could properly issue on it.

p. 5
02

Whether the dismissal order should be set aside and the suit reinstated

Holding

The review/setting-aside and reinstatement prayers fail; the Applicants were guilty of inordinate delay, laches and abuse of process and had not shown sufficient cause.

Reasoning

The application was filed one year and six days after dismissal, prompted only by service of a Party and Party Bill of Costs, indicating lack of bona fides. The Applicants also failed to comply with directions to file written submissions, demonstrating inertia and lack of interest. Under Order 12 Rule 7 the discretion to set aside exists, but it is not designed to assist those who deliberately obstruct or delay justice; the Applicants' conduct showed deliberate failure to prosecute their suit.

p. 8
03

Consequences of failure to file written submissions as directed

Holding

A party who fails to file submissions as ordered is deemed not to have prosecuted the application, warranting dismissal.

Reasoning

Directions were issued on 26th June 2023 for disposal by written submissions, with an extension granted on 14th November 2023, but the Applicants never filed. The court held that written submissions are now the norm and serve expediency; non-compliance demonstrated inertia, inordinate delay and lack of interest, and independently justified dismissing the main motion.

p. 4

Legal principles established

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  • Stay of execution cannot be granted in respect of a negative order - an order that does not require a party to do or abstain from doing anything or to pay any sum of money.
  • A party who fails to file written submissions as directed is deemed to have failed to prosecute the application, which becomes liable for dismissal.
  • The court's discretion to set aside an ex parte judgment or dismissal is intended to avoid injustice from inadvertence or excusable mistake, but not to assist a party who deliberately delays the course of justice.
  • Suits belong to the parties, not to counsel or the court, and parties must show interest in prosecuting their cases.

Court orders

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  1. 1.Dismissal of the main motion dated 26th May 2022 seeking stay of execution, review, variation and/or setting aside of the orders of 17th May 2022 and reinstatement of the suit
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 2
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 22 Rule 25 (sic)
  • Civil Procedure RulesOrder 17 Rule 2 (5)

Cases cited (17)

  • Muchanga Investment Limited v Safaris Unlimited (Africa) Ltd & 2 Others
    Civil Appeal No. 25 of 2002 (2009) eKLR 229
  • John Kipngeno Arap Sang vs. Joseph Kipkorir Sang
    Kericho ELC No. 97 of 2017 (sic)
  • Richard Nchapi Leiyangu vs. Independence Electoral & Boundaries Commission & 2 others
    [2014] eKLR
  • Mobil Kitale Service Limited v Mobil Oil Kenya Limited
    [2004] eKLR
  • Benjoh Amalgamated Limited & another vs. Kenya Commercial Bank Limited
    [2014] eKLR, Court of Appeal Case No. 16 of 2012 Nairobi (Civil Application)
  • Lindslay Petroleum Co. vs. Hurd
    918740 L.R. 5 P.C. 221 at page 240
  • Julius Kibiwott Tuwei vs. Reuben Argut & 7 others
    [2022] eKLR
  • Rowlands Ndegwa and 4 Others vs. County Government of Nyeri and 3 Others; Agriculture, Fisheries and Food Authority & Another (Interested Parties)
    [2020] eKLR
  • Winnie Wanjiku Mwai vs. Attorney General & 3 Others
    [2016] eKLR
  • Sonalux Limited & Another vs. Barclays Bank of Kenya Limited
    [2008] eKLR
  • Esther Wamaitha Njihia & 2 others vs. Safaricom Ltd
    [2014] eKLR
  • Mbogo vs. Shah
    [1968] EA 93
  • Parimal vs Veena
    2011 3 SCC 545
  • Peter Ngome vs Plantex Company Limited
    [1983] eKLR
  • Belinda Murai & Others – Vs – Amos Wainaina
    [1978] KLR 278
  • Richard Ncharpi Leiyagu – vs – IEBC and 2 Others
    Nyeri CA 18 of 2013
  • Phillip Chemwolo & Another vs Augustine Kubede
    [1982-88] KAR 103 AT 1040
Jurisdiction invoked
Sections 3A of the Civil Procedure Act and Order 12 Rule 7, Order 22 Rule 25 (sic) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lelei & 2 others v Kimetto & 30 others (Environment & Land Case 143 of 2017) [2024] KEELC 1220 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1220/eng@2024-03-07

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