Otwere v Koteha (Civil Appeal E198 of 2021) [2024] KECA 1110 (KLR)
The bottom line
#Kenya's Court of Appeal revived a land suit dismissed for delays, confirming courts should prefer deciding cases on merit over throwing them out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court erred in allowing the respondent's application despite the same being served by a firm not properly on record
- 2.Whether the court erred in failing to recognize that the matter in question had not been determined on merit
- 3.Whether the appellant's suit warranted dismissal for want of prosecution
Key legal issues
#Whether the issue of the respondent's advocates not being properly on record could be raised on appeal
No — the issue was not raised before the trial court and was therefore not preserved for appeal.
The Court found from the record that the appellant never raised the question of whether Fwaya Advocates were properly on record before the trial court; the grounds and submissions there were silent on it. An unpreserved issue cannot be entertained for the first time on appeal. This narrowed the appeal to the single question of whether dismissal for want of prosecution was warranted.
Whether the suit warranted dismissal for want of prosecution
No. Dismissal was not warranted given the interlocutory activity on the record, the respondent's own failure to set the matter down, and the need to determine land disputes on merit.
Applying Order 17 Rule 2 and the Ivita/Allen line of authorities, the Court noted several interlocutory applications and rulings from 2002 to 2017 that stopped the main hearing; the ELC's establishment post-2010 explained much of the delay; and the respondent itself could have set the matter down under Order 17 Rule 2(1) but did not. Discretion was therefore wrongly exercised by the trial court.
Legal principles established
#- A suit may be dismissed for want of prosecution where no application has been made or step taken by either party for at least one year preceding the application, but dismissal is discretionary and must weigh substantive justice; a court should strive to sustain a suit where possible.
- An issue not raised before the trial court cannot be raised for the first time on appeal.
- On a first appeal, the Court of Appeal has a primary duty to evaluate the evidence on the record and reach its own independent conclusion.
Court orders
#- 1.The appeal succeeds and the trial court's decision dismissing the suit for want of prosecution is set aside
- 2.The appellant is ordered to take appropriate steps towards having the suit fixed for hearing within 30 days of the judgment
- 3.Should the appellant fail to comply, the appeal shall stand dismissed
- 4.Each party shall bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court, Kakamega
- Kakamega ELC No. 274 of 2015
- Jurisdiction invoked
- First appeal under rule 31(1)(a) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, the appeal succeeds, and the trial court’s decision is hereby set aside. In allowing the appeal the appellant is ordered to take appropriate steps towards having the suit fixed for hearing within 30 days hereof. Should the appellant fail to comply with said order the appeal shall stand dismissed. Each party shall bear its own costs of this appeal.
Clearly, the statutory threshold set out under Order 17 Rule 2 of the Civil Procedure Rules is that a suit qualifies to be dismissed for want of prosecution: if no application has been made or no step has been taken in the suit by either party for at least one year preceding the presentation of the application seeking dismissal of the suit.
we are of the considered view, and concur with the appellant that this matter, like all other matters, need to be determined on merit.
As such, the appellant did not preserve the issue for determination on appeal and cannot, therefore, raise it in this Court for the first time.
Issues in the judgment
#The judgment does not state the name or case number of the appeal itself; the appeal number must be inferred from the underlying suit (Kakamega ELC No. 274 of 2015). The panel listing also appears with three judges but no single author is designated.
The respondent is never named in the body of the judgment; parties are referred to only as 'the respondent' and 'Kakamega County Council'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otwere v Koteha (Civil Appeal E198 of 2021) [2024] KECA 1110 (KLR)", Case Analysis (2024). Kakamega ELC No. 274 of 2015 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1110/eng@2024-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.