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ELCDismissedNot stated in judgment (Chamber Summons application dated 7th September 2023)· [2024] KEELC 4007 (KLR)

Bargoge & another v Karuiru & another (Environment & Land Case 292 of 2018) [2024] KEELC 4007 (KLR)

High Court of Kenya
2 May 2024
3,651 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the High Court at Kericho (L. A. Omollo, J) determined the Plaintiffs'/Applicants' Chamber Summons application dated 7th September 2023, seeking setting aside of orders of 27th July 2022 dismissing their suit for want of prosecution, reinstatement of the suit, and stay of taxation of the Defendants' party and party bill of costs. The underlying suit, filed by plaint dated 10th September 2018, concerned alleged illegal alterations of boundaries of parcels Njoro/Ngata Block 8/167 (Karuiru) and 8/168 (Karuiru) and sought declarations, an injunction, damages for trespass, reinstatement costs, mesne profits and costs. After mediation failed, the matter returned to court but lay dormant; a notice to show cause issued, the plaintiffs' counsel was absent on 27th July 2022 while defence counsel attended, and the suit was dismissed with costs. The applicants claimed non-service of the notice; the respondents maintained the plaintiffs had been indolent for three years and eight months. The court held that the discretion to reinstate must be exercised judiciously and that sufficient cause had not been shown: the firm of Konosi and Company Advocates had received the notice on 15th June 2022, and the plaintiffs' inaction after mediation could not be attributed to the court. The application was dismissed with costs to the Defendants/Respondents.

Key legal issues

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01

Whether the applicants demonstrated sufficient cause to warrant setting aside the dismissal of their suit and reinstating it

Holding

The application was not merited; the applicants' own advocates' firm received the notice to show cause, the court was satisfied service was effected, and the applicants' inaction after mediation failed was not attributable to the court

Reasoning

The court has a wide discretion to set aside dismissal orders, to be exercised judiciously. Sufficient cause requires that the party did not act negligently or remain inactive. Here mediation failed and the matter reverted to court on 14th/15th January 2020, but the plaintiffs took no steps for over two years. The notice to show cause dated 27/5/2022 was received by the firm of Konosi and Company Advocates on 15/6/2022; counsel for the plaintiffs was absent on 27/7/2022 while defence counsel attended. The court was satisfied service was duly effected and disbelieved the claim of non-service.

p. 7
02

Who should bear the costs of the application

Holding

Costs were awarded to the Defendants/Respondents as the successful parties

Reasoning

Applying Section 27 of the Civil Procedure Act and the decision in Hussein Janmohamed & Sons vs Twentsche Overseas Trading Co. Ltd, the general rule is that costs follow the event and a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. No reason was shown to depart from that rule.

p. 7

Legal principles established

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  • The discretion to set aside a dismissal for want of prosecution is exercised judiciously to avoid injustice but not to assist a party who deliberately obstructs or delays the cause of justice
  • Costs follow the event under Section 27 of the Civil Procedure Act unless the court for good reason directs otherwise

Court orders

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  1. 1.The Plaintiffs/Applicants application dated 7th September, 2023 is hereby dismissed.
  2. 2.The Defendants/Respondents shall have costs of this application.

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 50(1)
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A and 27
  • Civil Procedure Rules 2010Order 51 rules 1 and 15
  • High Court (Practice and Procedure) RulesRule 3
  • High Court (Organization and Administration) (General) Rules, 2016Rules 16 and 17

Cases cited (15)

  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Philip Chemowolo & Another v Augustine Kubende
    [1986] KLR
  • David Bundi v Timothy Mwenda Muthee
    [2022] eKLR
  • Gold Lida Limited vs NIC Bank Limited & 2 others
    [2018] eKLR
  • Harrison Wanjohi Wambugu vs Wairimu Chege & Another
    [2013] eKLR
  • Abdirahman Muhumed Abdi vs Safi Petroleum Products Limited & 6 others
    [2011] eKLR
  • Fran Investments Limited vs G4S Security Services Limited
    [2015]
  • Richard Nchapai Leiyangu vs IEBC & 2 Others
  • Ronald Mackenzie v Damaris Kiarie
    [2021] eKLR
  • Ferruz Omar Mahendan & 4 others v Ahmed Mohamed Honey
    [2016] eKLR
  • Catherine Kigasia Kivai v Ernest Ogesi Kivai & 4 others
    [2021] eKLR
  • Shah vs Mbogo
    (1979) EA 116
  • John Mukuha Mburu v Charles Mwenga Mburu
    [2019] eKLR
  • Parimal vs Veena
  • Hussein Janmohamed & Sons vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21); Order 51 rules 1 and 15 of the Civil Procedure Rules 2010

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, "Bargoge & another v Karuiru & another (Environment & Land Case 292 of 2018) [2024] KEELC 4007 (KLR)", Case Analysis (2024). Not stated in judgment (Chamber Summons application dated 7th September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4007/eng@2024-05-02

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