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ELCPartially AllowedKilgoris ELC (not expressly stated in judgment)· [2025] KEELC 1086 (KLR)

Kirui v Langat (Land Case 3 of 2023) [2025] KEELC 1086 (KLR)

Environment and Land Court
5 March 2025
MMM.N. Mwanyale
1,480 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated a land suit dismissed for lack of progress, but refused to stop an eviction or transfer another case because no enforceable judgment remained.

What this practically means

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Executive summary

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The plaintiff's suit, filed on 28.08.2023, was dismissed for want of prosecution by the court (Washe J) on 03.10.2024. The plaintiff, Joseph Kirui, through JK Mutai Advocates, filed an application dated 08.11.2024 seeking setting aside of the dismissal, reinstatement of the suit, stay of execution and of proceedings in Kilgoris CM E&L No. 121 of 2018 (Daniel Kipyegon Langat v Joseph Kirui), and transfer and consolidation of that suit with the present matter. He argued, relying on Order 17 Rule 2(1) of the Civil Procedure Rules and the James Kanyita Nderitu and Hamison Wanjohi Wambugu decisions, that no notice to show cause had issued before dismissal, and relied on the reinstatement principles in Professor Mwangi Kimenyi v Attorney General & KIPPRA (drawing on Ivita v Kyumbu). The respondent, acting in person, opposed the application, contending the suit was res judicata given the Kilgoris proceedings. The court (M.N. Mwanyale J) framed three issues: merit, reliefs and costs. It found no prolonged delay in prosecution or in seeking reinstatement, held that the non-service of the notice to show cause and absence of an affidavit of service were excusable grounds, and allowed reinstatement. However, it refused the stay and consolidation prayers, noting that the entire judgment of Hon. R.M. Oanda in Kilgoris E&L No. 121 of 2018 had been set aside on appeal in Narok ELC Appeal No. 10 of 2020, so no decree existed capable of execution and no pending suit could be transferred. The respondent remained free to pursue costs granted in the withdrawn ELC No. 9 of 2022. Costs of the application were awarded against the applicant.

Key legal issues

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01

Whether the suit dismissed for want of prosecution on 03.10.2024 should be reinstated

Holding

The application for reinstatement was merited; there was no prolonged delay and the grounds of dismissal were excusable.

Reasoning

The suit was dismissed on 03.10.2024 and the reinstatement application was filed about a month later, which the court found was not a prolonged delay. The applicant explained the dismissal on the basis that no notice to show cause was served and there was no affidavit of service, which the court accepted as excusable grounds. Applying the Ivita v Kyumbu test as adopted in Professor Mwangi Kimenyi v Attorney General & KIPPRA, the court found merit in reinstatement.

p. 3
02

Whether stay of execution and stay of proceedings in Kilgoris E&L No. 121 of 2018 should issue

Holding

Refused, as the judgment in that suit had been set aside on appeal and no execution was possible.

Reasoning

The court noted that on appeal in Narok ELC Appeal No. 10 of 2020, the entire judgment of Hon. R.M. Oanda in Kilgoris E&L No. 121 of 2018 was set aside. With no subsisting decree, there was nothing to stay and no pending proceedings capable of being stayed or consolidated with the present suit.

p. 3
03

Who should bear the costs of the application

Holding

The Applicant to bear the costs of the application.

Reasoning

The court framed costs as a discrete issue and, having allowed only the reinstatement prayer while rejecting the stay and consolidation prayers, exercised its discretion to order the Applicant to bear the costs of the application, while preserving the Respondent's right to pursue costs already granted in the withdrawn ELC No. 9 of 2022.

p. 4

Legal principles established

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  • The decision whether to reinstate a suit dismissed for want of prosecution depends on whether the delay is prolonged and inexcusable, and whether justice can still be done despite the delay.
  • A dismissal for want of prosecution may be set aside where the delay in seeking reinstatement is short and the grounds for the dismissal, such as non-service of the notice to show cause, are excusable.

Court orders

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  1. 1.The orders of 3rd October 2024 dismissing the suit for want of prosecution are set aside and the matter is reinstated for hearing and determination on its merits.
  2. 2.The Respondent, having been granted costs in ELC No. 9/2022 which was withdrawn, is at liberty to pursue the said costs.
  3. 3.Costs of the application to be borne by the Applicant.

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Civil Procedure RulesSection 18(2)(b)

Cases cited (5)

  • James Kanyita Nderitu vs Marios Philotas Ghikas and Another
  • Hamison Wanjohi Wambugu vs Felista Wairimu Chege & Another
    2013 (eKLR)
  • Professor Mwangis Kimenyi vs the Hon. Attorney General and Kenya Institute of Public Policy Research and Analysis (KIPPRA)
    Civil Suit No. 720 of 2009
  • Ivita vs Kyumbu
    1984 KLR 441
  • Daniel Maingi Muchiri vs Jubilee Insurance Co. Ltd
    (Civil Appeal No. 175 of 2014) (2017 KECAH)
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (inferred from the court; not expressly stated in the judgment)

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, "Kirui v Langat (Land Case 3 of 2023) [2025] KEELC 1086 (KLR)", Case Analysis (2025). Kilgoris ELC (not expressly stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1086/eng@2025-03-05

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