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ELRCPartially AllowedNot stated in the excerpt (application dated 3rd February 2016)· [2016] KEELRC 791 (KLR)

Barnabas Maritim v Manywele Korgoren & another [2016] KEELRC 791 (KLR)

Environment and Land Court
29 July 2016
MSMunyao Sila
1,863 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a land suit dismissed for 5-year delay, but only after the plaintiff deposited costs within 15 days.

What this practically means

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Executive summary

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This was a ruling by Munyao Sila J of the Environment and Land Court at Kericho on an application dated 3rd February 2016 by the plaintiff seeking reinstatement of his suit dismissed for want of prosecution on 26th June 2015, and substitution of advocates. The underlying suit, filed by plaint on 19th August 2009, concerned a claim that the plaintiff purchased a 50 X 100 feet commercial plot excised from land parcel Kericho/Olokyin/315 in 1993, which the 1st defendant allegedly obtained title to by fraud and later transferred a subdivision to the 2nd defendant. The defendants denied fraud, pleaded absence of Land Control Board consent, lack of privity, and a refund of Kshs. 12,000/= to settle the claim. The court found that the plaintiff took no step since 27th January 2010, when an amendment application was stood over generally, a delay of over five and a half years. The court held that the duty to prosecute a case rests ultimately with the litigant, that blaming his former advocate did not excuse the delay, and that no special circumstances were demonstrated to excuse it; the plaintiff was advised he might sue his advocate for professional negligence. Nevertheless, out of pure discretion and unwillingness to shut a party out, the court reinstated the suit subject to conditions: deposit of the taxed costs of Kshs. 181,686/= within 15 days and payment of Kshs. 25,000/= throw away costs to the defendants within the same period, failing which the dismissal would stand and the defendants could execute. The prayer for change of counsel was allowed.

Key legal issues

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01

Whether blame shifting to an advocate excuses a litigant's inordinate delay in prosecuting a suit

Holding

The duty to move the case ultimately remains with the litigant; blaming the advocate without more does not excuse a delay of over five years, though the litigant may have a claim in professional negligence against the advocate.

Reasoning

The court held that a litigant must be vigilant, liaise with counsel, and pursue the case; if unhappy with counsel, he may seek alternative counsel. Mr Koech's affidavit did not explain what he did upon receiving the dismissal application or whether he contacted his client, so the court could not be sympathetic. A litigant who knew his case was unprosecuted cannot hang the sword of litigation over another for such a duration.

p. 3
02

Whether the suit should nonetheless be reinstated despite the absence of special circumstances

Holding

Although the court had every reason to dismiss the application, it reinstated the suit purely out of discretion, subject to the deposit of taxed costs and payment of throw away costs within 15 days, failing which the dismissal would stand.

Reasoning

The judge stated it was not his practice to shut out a party from having his case heard and that he bends over backwards to ensure every litigant has his chance in court. On that discretionary basis the application was allowed but on strict conditions designed to demonstrate the plaintiff's seriousness, with default reverting to the dismissal order.

p. 3

Legal principles established

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  • The duty to prosecute a case ultimately rests with the litigant, not the advocate or the court registry.
  • A party whose case has lain unprosecuted for over five years must demonstrate special circumstances to be excused from the delay.

Court orders

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  1. 1.The application dated 3rd February 2016 allowed out of a pure exercise of discretion, subject to conditions
  2. 2.The applicant to deposit in court the taxed costs of Kshs. 181,686/= within 15 days of the ruling, refundable if he succeeds
  3. 3.The applicant to pay the defendants through their advocates on record Kshs. 25,000/= throw away costs within 15 days
  4. 4.If the two sums are not paid within the specified time, the order of dismissal of the suit shall stand and the defendants may execute for both the taxed costs and the Kshs. 25,000/=
  5. 5.The prayer for change of Counsel allowed (E.M Orina & Company Advocates to come on record in place of Koech J.K & Company Advocates)
Jurisdiction invoked
Inherent discretion of the court to reinstate a suit dismissed for want of prosecution (application dated 3rd February 2016)

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, "Barnabas Maritim v Manywele Korgoren & another [2016] KEELRC 791 (KLR)", Case Analysis (2016). Not stated in the excerpt (application dated 3rd February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/791/eng@2016-07-29

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