Luka Cherop Cheptoo, Jacob Kiptoo & Hosea Kiptum (suing as representatives of at least 50 members of Kapkiro Family) v The Board of Management, Chugor Primary School
The bottom line
#The Environment and Land Court in Iten refused to reinstate a land suit dismissed for inaction, ruling it had automatically died two years after filing.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 12 Rule 7 applies to a suit dismissed for want of prosecution
Order 12 does not aid the Plaintiffs because the suit never proceeded to the stage of hearing; it deals with hearing and consequences of non-attendance.
The court examined Order 12 Rule 7, which permits setting aside a judgment entered or a suit dismissed under that Order. Since the Plaintiffs' suit was never set down for hearing and their injunctive motion was never prosecuted, the dismissal was under Order 17 Rule 2, not Order 12. Order 12 Rule 7 was therefore inapplicable to the application to reinstate.
Whether the Plaintiffs' counsel was served with the Notice to show cause
The Notice was duly served on the Plaintiffs' counsel 12 days before dismissal; the 2nd Plaintiff's denial was dishonest.
The Notice issued pursuant to Order 17 Rule 2 was stamped and signed by the Plaintiffs' advocates' firm upon receipt. The court found that if counsel had not been served, nothing would have been easier than filing an affidavit to that effect, which was never done. The stamp and signature on the Notice were irrefutable evidence of service.
Whether the dismissal for want of prosecution should be set aside and the suit reinstated
No; the delay was prolonged and inexcusable, the Plaintiffs were dishonest, and the suit had already died by operation of law under Order 17 Rule 5.
Applying the Ivita v Kyumba test, the court found the delay prolonged and inexcusable given the dishonest denial of service and failure to attend the show-cause hearing. Further, under Order 17 Rule 5 the suit stood automatically dismissed two years after filing, on 11th October 2018, so there was no discretion left to exercise in the Plaintiffs' favour.
Legal principles established
#- Under Order 17 Rule 2(1), the word 'may give notice' does not denote personal service on the parties; posting the notice on the cause list suffices.
- A suit in which no step is taken for two years stands dismissed by effluxion of time under Order 17 Rule 5, without any notice.
- An applicant seeking discretionary relief must come with clean hands; dishonest denial of service disentitles the applicant.
Court orders
#- 1.The Motion is devoid of merits. It is dismissed.
- 2.Costs to the Defendant.
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act and Order 12 Rule 7 and Order 50 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luka Cherop Cheptoo, Jacob Kiptoo & Hosea Kiptum (suing as representatives of at least 50 members of Kapkiro Family) v The Board of Management, Chugor Primary School", Case Analysis (2026). ELC LC NO. E019 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5439/eng@2026-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.