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High CourtDismissedNotice of Motion dated 24th February, 2020 (suit number not stated in judgment)

Harriet Akwissa t/a Njeri Kariuki Advocate (for the Plaintiff) v Ernest Jacob Kisaka

High Court of Kenya
15 October 2020
LNL. Njuguna
513 words in judgment
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The bottom line

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If a court sets a deadline for you to actively pursue a case, missing that deadline means the case is automatically closed and cannot be reopened later.

What this practically means

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Executive summary

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The plaintiff/applicant moved the High Court by Notice of Motion dated 24th February, 2020 seeking reinstatement of the suit and setting aside of an order of dismissal made on 28th January, 2020. The application was supported by an affidavit of Harriet Akwissa Advocate, the only associate in the firm of Njeri Kariuki Advocate on record for the plaintiff, who explained that on the dismissal date she had to take her sick husband to hospital and, at the eleventh hour, instructed a pupil to seek an adjournment through an advocate. She contended the events were beyond her control and the plaintiff should not be penalised for counsel's mistake. The respondent, Ernest Jacob Kisaka, in a replying affidavit sworn 16th June, 2020, opposed the application, citing unexplained inordinate delay, the plaintiff's lack of keenness to prosecute, and the availability of more than three advocates in the firm on the material day. The application was disposed of by written submissions. The court raised, on the defendant's submission, the fundamental question whether any suit existed capable of reinstatement. Perusing the record, Njuguna J confirmed that on 22nd February, 2017 the court had ordered the suit to be prosecuted within 120 days failing which it would stand dismissed; that order had never been set aside or varied, and the suit was not prosecuted within the stipulated period. The suit therefore stood dismissed automatically upon expiry of the 120 days, meaning there was no suit capable of dismissal on 28th January, 2020. The application was dismissed as an abuse of the court process, with costs to the respondent, who was also awarded the costs of the suit.

Key legal issues

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01

Whether a suit that had automatically lapsed under a 'dismiss unless prosecuted within 120 days' order could be reinstated by setting aside a subsequent dismissal order

Holding

No - the suit stood dismissed upon expiry of the 120 days and there was no suit capable of dismissal on 28th January, 2020; the reinstatement application was an abuse of process

Reasoning

The court verified from its record that on 22nd February, 2017 it ordered prosecution of the suit within 120 days failing which it would stand dismissed. There was no indication that this order was set aside or varied, and the suit was not prosecuted within the stipulated period. Accordingly the suit had already lapsed before the 28th January, 2020 dismissal order, leaving nothing to reinstate.

p. 1

Legal principles established

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  • Where a court orders that a suit be prosecuted within a fixed period failing which it stands dismissed, the suit stands dismissed automatically upon expiry of that period, and a later dismissal order cannot be set aside because there is no subsisting suit to reinstate.

Court orders

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  1. 1.The application dated 24th February, 2020 is dismissed
  2. 2.Costs of the application awarded to the respondent
  3. 3.The respondent is also awarded the costs of the suit
Jurisdiction invoked
Inherent jurisdiction of the High Court to reinstate a dismissed suit / set aside its own orders (not expressly stated in the judgment)

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, "Harriet Akwissa t/a Njeri Kariuki Advocate (for the Plaintiff) v Ernest Jacob Kisaka", Case Analysis (2020). Notice of Motion dated 24th February, 2020 (suit number not stated in judgment). Source:

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