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ELCAllowed· [2024] KEELC 6334 (KLR)

Abio & 5 others v Surveyor & 2 others (Environment & Land Case 6 of 2021) [2024] KEELC 6334 (KLR)

Environment and Land Court
30 September 2024
MNMwangi Njoroge
1,776 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Malindi reinstated a land suit dismissed for want of prosecution, ruling that mishaps in the plaintiff's legal representation justified the delay.

What this practically means

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Executive summary

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This was a ruling on a reinstatement application dated 21st November 2023, brought under Order 17 Rule 2(6) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking reinstatement of a suit dismissed for want of prosecution and costs in the cause. The applicants deponed that their original advocates (E.M Washe & Associates) ceased operations after the founding partner was appointed a judge of the Environment and Land Court; the file passed to another advocate who was unwell, and the hearing notice was served on a non-operational email address of the former firm, leading to dismissal of the suit on 11th May 2023. The 1st Defendant opposed, contending proper service by email under Order 5 Rule 22B, multiple missed court dates, and prejudice given a filed appeal and a Bill of Costs already determined. The 2nd and 3rd Defendants filed grounds of opposition arguing no steps were taken in the intervening year. Mwangi Njoroge J identified a single issue: whether the applicants had satisfied the court to reinstate the suit. Relying on Nilesh Premchand Mulji Shah v M.D. Popat and the Ivita v Kyumba test, and invoking Article 159(2)(d), the court found a reasonable justification for the delay centred on mishaps in the applicants' legal representation and held that substantive justice required the suit be heard on merit. The application was allowed as prayed in prayers 2 and 3, with the suit reinstated and directed for mention on 31st October 2024 for further directions, costs in the cause.

Key legal issues

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Whether the applicants met the threshold for reinstatement of a suit dismissed for want of prosecution under Order 17 Rule 2

Holding

Yes. The court found a reasonable justification in the circumstances concerning representation by counsel, and reinstated the suit in the interest of substantive justice under Article 159(2)(d).

Reasoning

The court considered the history of the suit, the unexplained initial inactivity, and the reasons advanced for the delay, which centred on the change in representation: the plaintiff's advocate having been appointed a judge, the file passed on, and service effected on a non-operational email address. Applying the Ivita v Kyumba test and Article 159(2)(d), the court held that the mishaps explained the delay and that justice required the suit be heard on merit.

p. 4

Legal principles established

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  • The power to dismiss a suit for want of prosecution is discretionary and must be exercised in the interest of justice, considering whether the delay is inordinate, inexcusable and prejudicial, and whether justice can still be done despite the delay.
  • Where a reasonable justification is given for reinstatement following dismissal for want of prosecution, particularly on grounds of representation by counsel, substantive justice favours reinstatement.

Court orders

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  1. 1.Reinstatement of the suit dismissed on 11th May 2023 for want of prosecution
  2. 2.Costs be in the cause
  3. 3.Suit to be mentioned on 31/10/2024 for issuance of further directions

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure RulesOrder 17 Rule 2(6)
  • Civil Procedure RulesOrder 5 Rule 22B
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (5)

  • Catherine Kigasia Kivai vs Ernest Ogesi Kivai & 4 others
    (2021) eKLR
  • Josphat Mabiala Akoyo v George Mabele Sifuna & John Odhiambo
    (2022) eKLR
  • Omwoyo vs African Highlands & Produce Co. Ltd
    (2002) 1 KLR
  • Ivita vs Kyumbu
    (1984) KLR 441
  • Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium v M.D. Popat & others
    [2016] eKLR
Jurisdiction invoked
Order 17 Rule 2(6) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Abio & 5 others v Surveyor & 2 others (Environment & Land Case 6 of 2021) [2024] KEELC 6334 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6334/eng@2024-09-30

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