Bargoge & another v Karuiru & another (Environment & Land Case 292 of 2018) [2024] KEELC 4007 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicants demonstrated sufficient cause to warrant setting aside the dismissal of their suit and reinstating it
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
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.
Who should bear the costs of the application
Costs were awarded to the Defendants/Respondents as the successful parties
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.
Legal principles established
#- 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
#- 1.The Plaintiffs/Applicants application dated 7th September, 2023 is hereby dismissed.
- 2.The Defendants/Respondents shall have costs of this application.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.