Ndung'u (Suing as an Administrator of the Estate of the Late Benson Ndung’u Theuri alias Ndung’u Theuri Mwema) v Mwaniki & 55 others (Environment and Land Case 42 of 2021) [2025] KEELC 7078 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated a dismissed land suit, clarifying that notice via the court website or cause-list satisfies Order 17 before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether Notice to Show Cause was duly given before dismissal for want of prosecution
The Notice to Show Cause was duly given by the court; under Order 17 Rule 2(1) service is not required, only that notice be given, which may be via the website or cause-list.
Relying on Fran Investments Limited v G4S Security Services Limited, the court held that Order 17 Rule 2(1) uses the phrase 'give notice' rather than 'serve notice', so notice via the official website or cause-list suffices. On the facts, the Notice to Show Cause was duly given by the court, disposing of the plaintiff's complaint of non-service.
Whether the suit dismissed for want of prosecution should be reinstated
The suit was reinstated on conditions, because within the year preceding dismissal a live application (by counsel for the 34th and 35th defendants to cease acting) was underway.
Although the plaintiff did little to prosecute the suit after the amendment orders of 3.5.2021, the court noted that within the one year leading to the dismissal the prosecution of Mr Bwononga's application to cease acting was underway. This persuaded the court, in its discretion, to reinstate the suit subject to strict conditions against adjournments and requiring compliance with directions.
Legal principles established
#- Order 17 Rule 2(1) of the Civil Procedure Rules requires the court to 'give notice' rather than serve notice, and notice given through the court website or cause-list is sufficient.
Court orders
#- 1.The suit dismissed on 29.7.2024 is reinstated on condition that, once listed for hearing, it shall not be adjourned at the instance of the plaintiff
- 2.The plaintiff must comply with any directions given by the court regarding prosecution of the matter
- 3.Costs of the application shall be in the cause
- Jurisdiction invoked
- Inherent jurisdiction of the court over its own process in reinstating a suit dismissed for want of prosecution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung'u (Suing as an Administrator of the Estate of the Late Benson Ndung’u Theuri alias Ndung’u Theuri Mwema) v Mwaniki & 55 others (Environment and Land Case 42 of 2021) [2025] KEELC 7078 (KLR)", Case Analysis (2025). ELC 42 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7078/eng@2025-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.