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ELCPartially AllowedNot stated in the judgment (suit instituted by Plaint filed 19th September, 2013)· [2024] KEELC 7228 (KLR)

Victory Centre (Suing through Philip N Karanja, Richard Masai, Peter Kinuthia, Rose Mwangerika) v Kandimuwa Limited; Ministry of Lands and Settlement & another (Interested Parties) (Environment & Land Case 1124 of 2013) [2024] KEELC 7228 (KLR)

Environment and Land Court
1 December 2024
3,784 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reinstated a land suit dismissed for non-prosecution, finding counsel's last-minute withdrawal and a trustee's death explained the six-month delay.

What this practically means

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Executive summary

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By a Motion dated 29th April 2024 under Articles 50 and 159(2)(d) of the Constitution, the Environment and Land Court Act and the Civil Procedure Act and Rules, the Plaintiff sought reinstatement of its suit dismissed on 2nd November 2023, setting aside of that day's proceedings and a de novo hearing. The Plaintiff, through its trustee Wincate Gatiru Njogu, explained that on the hearing date its previous counsel was discharged after filing a motion to cease acting, its Chairman declined to prosecute the case without counsel, and the suit was dismissed for non-prosecution. Subsequent efforts to reinstate the suit were hampered by technical hitches on 12th March 2024 and the death of the Chairman/trustee on 21st March 2024. The Defendant, through Director James Kamwere Muriuki, opposed the Motion, contending that the Plaintiff had a long history of adjournments and delaying tactics over nearly ten years of litigation, that the right to representation is not absolute, that the delay of some six months was inordinate and unexplained, and that equity aids the vigilant. The Interested Parties did not participate. The Court framed one issue: whether sufficient cause for reinstatement was established. Applying Order 12 Rule 7 of the Civil Procedure Rules and the Shah v Mbogo line of authorities, the Court found the delay excusable, noting counsel's motion to cease acting was served only one day before the hearing and that the Defendant had not shown the remaining trustees had locus to proceed. Although critical of the Plaintiff's lackadaisical prosecution, the Court granted one last chance, reinstating the suit, setting aside the proceedings of 2nd November 2023, directing a de novo hearing within the term, and ordering the Plaintiff to bear the costs of the Motion.

Key legal issues

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01

Whether the delay of approximately six months in filing the reinstatement Motion was inordinate and unexplained

Holding

The delay was explained and excusable, being occasioned by factors primarily outside the Plaintiff's control, including the engagement of new counsel, technical hitches and the death of a trustee

Reasoning

The Court traced the chronology: new counsel came on record on 8th February 2024 and filed a Motion; the 12th March 2024 hearing failed due to technical hitches; the trustee died on 21st March 2024 and an emergency meeting was held on 27th April 2024, with the Motion filed two days later. The Defendant did not demonstrate that the remaining trustees had sufficient locus to proceed.

p. 5
02

Whether sufficient cause was established warranting reinstatement of the suit dismissed on 2nd November 2023

Holding

Sufficient cause was established; the Plaintiff's counsel filed the motion to cease acting on the eve of the hearing, leaving the Plaintiff in a precarious position, and the right to representation warranted giving the Plaintiff one last chance

Reasoning

Although the litigation history showed a lackadaisical prosecution over nearly 10 years, the Court weighed the Plaintiff's right to counsel of choice against the Defendant's right to a fair trial. Counsel's discharge one day before the hearing left the Plaintiff unable to obtain replacement representation in time.

03

Whether the proceedings of 2nd November 2023 should be set aside and the suit proceed de novo

Holding

Yes; good order and justice dictated that the reinstated matter proceed de novo

Reasoning

Having reinstated the suit, the Court considered that setting aside the proceedings and commencing afresh was the just course, since the Plaintiff had not been able to prosecute its case or cross-examine on the date of dismissal.

p. 7

Legal principles established

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  • The discretion to set aside a dismissal or ex parte judgment is to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructs or delays justice.
  • Sufficient cause is a question of fact to be determined in the varied and special circumstances of each case.
  • Discretion must be exercised judiciously and not on caprice, upon legal principles and according to the circumstances of each case.

Court orders

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  1. 1.The Plaintiff's suit be and is hereby reinstated
  2. 2.The Court does hereby set aside the proceedings of 2nd November, 2023
  3. 3.The hearing of this suit to commence de novo, and in any event within this term, unless ordered otherwise
  4. 4.The Plaintiff shall bear the costs of the Motion

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 50, 159(2)(d)
  • Environment and Land Court ActSection 3
  • Civil Procedure ActSections 1A, 2, 3A
  • Civil Procedure Rules, 2010Order 51 Rule 1; Order 12 Rule 7

Cases cited (4)

  • Shah vs Mbogo & Another
    (1967) EA 116
  • Patriotic Guards Limited vs James Kipchirchir Sambu
    [2018] eKLR
  • Wilson Cheboi Yego vs Samuel Kipsang Cheboi
    [2019] eKLR
  • Njoroge vs Kimani
    (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) (28 October 2022) (Ruling)
Jurisdiction invoked
Articles 50 and 159(2)(d) of the Constitution, Section 3 of the Environment and Land Court Act, Sections 1A, 2 and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Victory Centre (Suing through Philip N Karanja, Richard Masai, Peter Kinuthia, Rose Mwangerika) v Kandimuwa Limited; Ministry of Lands and Settlement & another (Interested Parties) (Environment & Land Case 1124 of 2013) [2024] KEELC 7228 (KLR)", Case Analysis (2024). Not stated in the judgment (suit instituted by Plaint filed 19th September, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7228/eng@2024-10-31

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