Uasin Gishu Memorial Hospital Limited v Moi Teaching and Referral Hospital Board & 2 others (Environment & Land Miscellaneous Case 1 of 2022) [2024] KEELC 5254 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated Uasin Gishu Memorial Hospital's long-running land case, ruling the suit was wrongly dismissed without proper notice to the parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was eligible for dismissal under Order 17 Rule 2 of the Civil Procedure Rules
The suit was not eligible for dismissal; the period of delay ran from 15th February 2022 when the matter first came before the ELC, and less than a year had elapsed by the date of dismissal on 10th May 2022
The court held that although the Supreme Court delivered its judgment on 24th March 2021, the file was only transferred to the Environment and Land Court on 22nd December 2021 and first mentioned on 15th February 2022. The interregnum was attributable to the court, not the parties, so the one-year inaction period could not run from the Supreme Court judgment.
Whether the dismissal was procedurally valid absent a notice to show cause
The dismissal was invalid because no notice to show cause was issued to the Applicant or the 3rd Respondent before dismissal
Order 17 Rule 2 requires the court to give notice in writing to the parties to show cause why the suit should not be dismissed, and only if cause is not shown may it dismiss. No such notice preceded the dismissal here, so the exercise of the discretionary power was flawed.
Whether the Applicant explained its delay in applying for reinstatement
The Applicant's delay was excusable; the mention notice email, listing advocates as parties and omitting case numbers, was insufficient to alert its counsel
The Applicant diligently corresponded with the Supreme Court and the High Court seeking transfer, copying the other parties who knew of the dismissal but stayed silent. The court found the email was not sufficient for a busy advocate to connect it to the matter in the Supreme Court, so sufficient grounds existed to exercise discretion in the Applicant's favour.
Legal principles established
#- The test for reinstating a suit dismissed under Order 17 is whether the delay is prolonged and inexcusable and whether justice can be done despite the delay
- Dismissal of a suit for want of prosecution under Order 17 requires prior service of a notice to show cause
- A suit may only be dismissed under Order 12 where it comes up for hearing and parties fail to attend; a mention is not a hearing
- Delay attributable to the court cannot be visited on the parties
Court orders
#- 1.The orders issued on 10th May 2022 dismissing the suit for want of prosecution are set aside
- 2.The suit is reinstated and shall be heard on priority basis
- 3.Costs shall be in the cause
- Jurisdiction invoked
- Reference jurisdiction of the Environment and Land Court following remittal by the Supreme Court in Petition No. 20 of 2019 (judgment of 24th March 2021); application under Order 17 Rule 2(6) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Uasin Gishu Memorial Hospital Limited v Moi Teaching and Referral Hospital Board & 2 others (Environment & Land Miscellaneous Case 1 of 2022) [2024] KEELC 5254 (KLR)", Case Analysis (2024). ELC Misc App. No. 1 of 2022 (formerly High Court Constitutional & Judicial Review Miscellaneous Civil Case No. 12A of 2006 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5254/eng@2024-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.