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ELCAllowedNot stated in the judgment· [2024] KEELC 6607 (KLR)

Kamau v Diamond Property Merchants Limited (Environment & Land Case 326 of 2018) [2024] KEELC 6607 (KLR)

Environment and Land Court (court not expressly named; single judge at Nairobi)
3 October 2024
LMLucy N. Mbugua
541 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 was a Notice of Motion dated 22.4.2024 by the plaintiff seeking reinstatement of his suit, which had been dismissed for want of prosecution on 23.6.2020. The applicant explained that after filing suit in July 2018 he waited in vain for updates from his advocate, only learning in early 2024, upon visiting the firm, that the advocate handling the matter had left and that the case had been dismissed. He urged that the mistakes of his advocates should not be visited upon him. The defendant, through a replying affidavit sworn by its director Robert Mwarangu, opposed the application, contending that the plaintiff had abandoned the case and that the delay of nearly four years in seeking reinstatement was inordinate and unexplained. The court framed a single issue: whether the suit dismissed on 23.6.2020 should be reinstated. Reviewing the record, the judge found it unflattering: the plaintiff's advocate failed to comply with directions of 9.7.2019 to serve a paginated trial bundle within 60 days, stopped attending court, and the suit was dismissed on 23.6.2020. The plaintiff offered no plausible account for taking close to six years to discover the fate of his case, the court noting that a matter once filed belongs to the litigant and not his advocate. However, because the applicant now appeared vigilant, had engaged a new advocate, and was ready to prosecute, the court adopted a broad equity approach and allowed the application on conditions: payment of throw away costs of Kshs. 50,000 to the respondent before the next court date, and no adjournments at the plaintiff's instance once the case is set down for hearing.

Key legal issues

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01

Whether a suit dismissed for want of prosecution on 23.6.2020 should be reinstated

Holding

Yes - despite the plaintiff's inordinate and unexplained delay and poor record of compliance, the court adopted an equity approach because the applicant is now vigilant and ready to prosecute the matter.

Reasoning

The court reviewed the file and found no compliance with directions of 9.7.2019 and no attendance by the plaintiff's advocate, leading to dismissal on 23.6.2020. The plaintiff did not plausibly explain taking nearly six years to inquire about his case, and a suit belongs to the litigant, not the advocate. Nonetheless, the applicant has engaged a new advocate and appears ready to prosecute, so the court broadly exercised its discretion in favour of reinstatement, with conditions.

p. 2

Legal principles established

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  • Reinstatement of a dismissed suit is a matter of justice dependent on the facts of each case
  • A matter once filed belongs to the litigant and not the advocate

Court orders

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  1. 1.The application dated 22.4.2024 is allowed
  2. 2.The applicant shall pay throw away costs of sh.50,000 to the respondent before the next court date
  3. 3.Once set down for hearing, the case shall not be adjourned at the instance of the plaintiff

Authorities

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Cases cited (2)

  • Mwangi S. Kimenyi v Attorney General and another
    [2014] eKLR
  • Mwangi Gachiengu & 2 others v Mwaura Githuku & another
    [2019] eKLR
Jurisdiction invoked
Inherent power of the court to reinstate a suit dismissed for want of prosecution (no express constitutional/statutory provision cited)

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, "Kamau v Diamond Property Merchants Limited (Environment & Land Case 326 of 2018) [2024] KEELC 6607 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6607/eng@2024-10-03

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