Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC LC NO. E019 OF 2025· ITEN ELCLC. NO. E019 OF 2025 (RULING)

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

Environment and Land Court
17 September 2026
2,290 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
The Plaintiffs, suing as representatives of the Kapkiro Family, filed suit against the Board of Management of Chugor Primary School alleging trespass on their land at Chegar. Their suit, originally filed at the ELC Eldoret on 10th October 2016 and later at Iten, was dismissed on 17th February 2021 by Odeny J. for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules. By Notice of Motion dated 3rd May 2024, the Plaintiffs sought setting aside of the dismissal, reinstatement of the suit, and leave to request judgment in default of appearance and defence, contending they and their counsel had no notice of the dismissal. The Defendant opposed through its Head Teacher, who deponed that the Plaintiffs had not moved the court for over five years and that the Attorney General had received letters from the Plaintiffs disowning any advocate - though the annexures supporting this were never filed. The court found the Notice to show cause was stamped and signed by the Plaintiffs' advocates on receipt, 12 days before dismissal, making the 2nd Plaintiff's denial of service dishonest. Order 12 Rule 7 did not apply since the suit never reached hearing. Applying Ivita v Kyumba, the delay was prolonged and inexcusable. Further, under Order 17 Rule 5, the suit stood automatically dismissed on 11th October 2018 by effluxion of time, leaving no discretion to exercise and no pending suit on which default judgment could be entered. The Motion was dismissed with costs to the Defendant.

Key legal issues

#
01

Whether Order 12 Rule 7 applies to a suit dismissed for want of prosecution

Holding

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.

Reasoning

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.

p. 7
02

Whether the Plaintiffs' counsel was served with the Notice to show cause

Holding

The Notice was duly served on the Plaintiffs' counsel 12 days before dismissal; the 2nd Plaintiff's denial was dishonest.

Reasoning

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.

p. 10
03

Whether the dismissal for want of prosecution should be set aside and the suit reinstated

Holding

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.

Reasoning

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.

p. 12

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. 1.The Motion is devoid of merits. It is dismissed.
  2. 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.