Sode v Sode (Succession Cause 37 of 2019) [2020] KEKC 17 (KLR)
The bottom line
#A Kenyan Kadhi's Court refused to revive a preliminary objection because the applicant sat on it for months without explanation, showing courts will not reward delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissed preliminary objection should be reinstated
The application for reinstatement was dismissed because the applicant was indolent, having failed to file written submissions within the 14 days directed, and all three ingredients for dismissal (inordinate delay, inexcusable delay and prejudice) were present when the objection was dismissed on 17th February 2020.
The court traced the history: the preliminary objection was filed on 3rd September 2019; on the respondent's own request the court allowed 14 days for written submissions; the respondent never filed them, and the objection was dismissed for want of prosecution on 17th February 2020. Relying on Maina Karanja (2014) eKLR, the court held dismissal rests on the court's inherent powers and public interest in expeditious conclusion of matters. The applicant offered no explanation for the delay, so reinstatement would be an erroneous exercise of discretion. Over a year had elapsed with no attempt to prosecute the objection.
Legal principles established
#- A matter should only be dismissed for want of prosecution where inordinate delay, inexcusable delay and prejudice to the opposing party all exist.
- An applicant for reinstatement must satisfactorily explain the delay and lack of diligence before the court exercises its discretion in his favour.
Court orders
#- 1.The Notice of motion dated 12th August 2020 and filed on 14th August 2020 is dismissed as not merited
- 2.The main suit was marked for mention on 2nd November 2020
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; sections 3 and 3A of the Civil Procedure Act and Order 51 Rule 15 of the Civil Procedure Rules, 2010 (as invoked in the application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sode v Sode (Succession Cause 37 of 2019) [2020] KEKC 17 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2020/17/eng@2020-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.