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ELCDismissedNot stated in the judgment· [2024] KEELC 6277 (KLR)

Plaintiff v. 1st & 2nd Defendants (Notice of Motion dated 13th July 2023)

Environment and Land Court of Kenya
25 September 2024
ANA. Nyukuri
1,605 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to revive a suit dismissed for non-attendance because the plaintiff's key witness gave no sworn explanation, ending the case.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 13th July 2023 in which the plaintiff, a limited liability company, sought to set aside an order of 30th May 2023 dismissing its suit for want of prosecution and to have the suit reinstated for hearing. The application, supported by an affidavit of Michelle Ouma, advocate for the plaintiff, explained that the plaintiff's sole witness - its only surviving director, based in Turkey - had been unreachable following an earthquake, resulting in a breakdown of communication with counsel. The 1st defendant opposed, asserting the court had properly exercised its discretion and that litigation must be conducted expeditiously. The court framed a single issue: whether the plaintiff had provided a valid reason for failing to attend the hearing on 30th May 2023. Applying Order 12 Rule 7 of the Civil Procedure Rules and the test in Thathini Development Company Limited, the court held the power to set aside dismissal is discretionary and must be exercised judiciously. It found the explanation inexcusable: the sole director had not sworn any affidavit confirming he had been traced or would attend any future hearing, and counsel's affidavit gave conflicting reasons. The application was dismissed with costs to the 1st defendant, leaving the suit dismissed for want of prosecution.

Key legal issues

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01

Whether the plaintiff gave a valid reason for failing to attend the hearing on 30th May 2023

Holding

No - the excuse (an unreachable witness in Turkey affected by an earthquake) was unverified, the witness never swore an affidavit, and counsel could not confirm the witness had been traced or would attend future hearings

Reasoning

Order 12 Rule 7 confers a discretionary power to set aside dismissal for want of prosecution, to be exercised judiciously. The court examined the history of adjournments and found the plaintiff's counsel gave inconsistent and unverified explanations. The sole witness/director did not swear any affidavit confirming availability, leaving the court with no assurance the suit could proceed even if reinstated.

p. 3

Legal principles established

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  • The power to set aside an order dismissing a suit for want of prosecution is discretionary and must be exercised judiciously, not whimsically or capriciously
  • In setting aside dismissal for want of prosecution, the court must interrogate the excuse for the delay and the circumstances leading to the dismissal

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 13th July 2023 seeking to set aside the order of dismissal of 30th May 2023 and to reinstate the suit is dismissed
  2. 2.Costs of the application awarded to the 1st defendant
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules (inherent power to set aside dismissal of suit for want of prosecution)

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, "Plaintiff v. 1st & 2nd Defendants (Notice of Motion dated 13th July 2023)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6277/eng@2024-09-25

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