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ELCDismissedNot stated in the judgment (application dated 02/07/2024 in a suit before the ELC, Bungoma)· [2025] KEELC 3127 (KLR)

Wafula (Legal representative of Peter Mayeku Khisa - Dcd) & another v Khisa (Civil Suit 130 of 2012) [2025] KEELC 3127 (KLR)

Environment and Land Court
27 March 2024
1,031 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Bungoma refused to revive a land suit the plaintiff had left dormant, confirming courts won't reward litigants who sleep on their cases.

What this practically means

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Executive summary

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The plaintiff/applicant moved the court by notice of motion dated 02/07/2024 seeking reinstatement of his suit, which had been dismissed for want of prosecution. The sole issue was whether sufficient reasons had been given to warrant reinstatement. The court set out the legal framework: Order 17 Rule 2(1) of the Civil Procedure Rules governs dismissal for want of prosecution; Article 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act emphasise expeditious disposal and the court's inherent powers; and the Ivita v Kyumbu test requires that delay be prolonged and inexcusable before dismissal, with prejudice having to be shown. The court also applied Shah v Mbogo and Bilha Ngonyo Isaac on the judicious exercise of discretion, and Ruga Distributors and Savings and Loans on the litigant's personal duty to prosecute a case. On the facts, the suit had been dismissed and the applicant, despite filing several applications in 2022 and 2023 concerning correction of party names in the decree and orders, had prosecuted none of them, nor the suit itself. He even disavowed the advocate he had appointed. The court found the applicant indolent and the author of the confusion over the parties, and could not see what purpose reinstatement would serve. The application dated 02/07/2024 was dismissed with no orders as to costs.

Key legal issues

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01

Whether sufficient reasons were given to warrant reinstatement of the suit dismissed for want of prosecution

Holding

The application was dismissed because the applicant was indolent, took no steps to prosecute the suit or prior applications, and the court could not see what purpose reinstatement would serve

Reasoning

The court outlined the framework in Order 17 Rule 2(1) CPR and the Ivita v Kyumbu test, and the discretionary principles in Shah v Mbogo and Bilha Ngonyo Isaac. It noted the suit was dismissed on 23/04/2024 and that the applicant had filed several applications in 2022 and 2023 but prosecuted none of them. The applicant even denied engaging the advocate on record. The court found the applicant was the author of the confusion over party names and that reinstatement would serve no purpose.

p. 3

Legal principles established

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  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay, with prejudice having to be demonstrated
  • Reinstatement of a suit is a judicial discretion to be exercised to avoid injustice, not to assist deliberate obstruction or delay
  • A case belongs to the litigant, not the advocate, and a litigant has a duty to pursue prosecution of his or her case

Court orders

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  1. 1.The application dated 02/07/2024 seeking reinstatement of the suit is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure Act, Cap 21Sections 1A, 1B and 3A
  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Civil Procedure RulesOrder 12 Rule 3(1)

Cases cited (5)

  • Ivita vs. Kyumbu
    [1984] KLR 441
  • Bilha Ngonyo Isaac vs. Kembu Farm Ltd & another
    [2018] eKLR
  • Shah vs. Mbogo & Another
    (1967) EA 116
  • Ruga Distributors Limted vs Nairobi Bottlers Limited
    [2015] eKLR
  • Savings and Loans Limited vs Susan Wanjiru Muritu
    Nairobi HCCC397/2002
Jurisdiction invoked
Inherent powers of the court under Section 3A of the Civil Procedure Act, Cap 21, and Order 17 Rule 2(1) and Order 12 Rule 3(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, "Wafula (Legal representative of Peter Mayeku Khisa - Dcd) & another v Khisa (Civil Suit 130 of 2012) [2025] KEELC 3127 (KLR)", Case Analysis (2024). Not stated in the judgment (application dated 02/07/2024 in a suit before the ELC, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3127/eng@2025-03-27

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