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ELCDismissedNot stated in judgment· [2013] KEELC 15 (KLR)

Fadhili Abdalla V Bashelalai Shekale Shelali & 2 others [2013] KEELC 15 (KLR)

Environment and Land Court
19 December 2013
OAO. A. Angote
1,791 words in judgment
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The bottom line

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A Kenyan landowner lost his case permanently because he stopped following it up, and the court refused to revive it.

What this practically means

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Executive summary

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The Plaintiff moved the court by application dated 6th May 2013 seeking to set aside the order of 7th February 2013 dismissing his suit for want of prosecution and to reinstate the suit for expeditious hearing, with costs in the cause. The suit, filed on 28th April 2011, sought a declaration that the Plaintiff was the lawful owner of plot number 988/Watamu Township. The Plaintiff attributed his advocate's repeated non-attendance to a former clerk, one Morris Ngonyo, who allegedly failed to communicate hearing dates and who, it was said, was no longer employed by the firm and lacked instructions to accept documents. The 2nd Defendant, appearing through its director, opposed the application, showing that it had repeatedly invited the Plaintiff to fix hearing dates, served mention and hearing notices (including by G4S courier and through the process server on the advocate's secretary, one Purity), and that the Plaintiff had shown no interest in prosecuting the suit since November 2011. The court traced the procedural history and found the service of notices properly effected, noting that the Plaintiff's advocate had not cross-examined the process servers and that some notices were served on his secretary. The court held that the mistake-of-counsel explanation was implausible, that a party cannot file a claim and sit back without complying with the Civil Procedure Rules, 2010, and that under Order 11 a defendant may fix the suit for hearing and seek dismissal in the claimant's absence. The application dated 6th May 2013 was dismissed with costs.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution ought to be set aside

Holding

The dismissal was upheld; the Plaintiff's explanations for non-attendance were not plausible and service had been properly effected on the advocate's office

Reasoning

The court traced the history of mentions and hearing notices, finding that hearing notices were served on the Plaintiff's secretary and office, evidenced by stamps, receipts and affidavits of service. The Plaintiff's advocate never cross-examined the process servers. No explanation was offered for failing to fix the matter for hearing or enquire about the file since November 2011, demonstrating lost interest in the suit.

p. 3
02

Whether a defendant may take steps to fix a suit for hearing where the plaintiff has not complied with Order 11

Holding

Yes - where the plaintiff fails to comply with the pre-trial requirements of Order 11 of the Civil Procedure Rules, 2010, the defendant may fix the suit for hearing and apply for dismissal in the claimant's absence

Reasoning

Order 11 requires parties, within ten days after close of pleadings, to complete, file and serve pre-trial questionnaires. A plaintiff who does not comply cannot complain when the defendant takes proactive steps to have the suit prosecuted expeditiously, including fixing it for hearing and seeking dismissal for want of prosecution.

p. 3

Legal principles established

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  • A party cannot file a claim and then sit back without complying with the Civil Procedure Rules; a defendant may fix the suit for hearing and seek dismissal where the plaintiff fails to comply with Order 11 pre-trial requirements
  • Failure by an advocate's clerk to communicate a hearing date does not excuse non-attendance where other notices were served on the advocate's office (e.g. a secretary) and the advocate took no steps to follow up the file

Court orders

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  1. 1.Refusal to set aside the order dismissing the suit for want of prosecution
  2. 2.Dismissal of the Plaintiff's Application dated 6th May 2013 with costs
Jurisdiction invoked
Inherent jurisdiction of the court to review/set aside its own dismissal orders (Civil Procedure Rules, 2010)

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, "Fadhili Abdalla V Bashelalai Shekale Shelali & 2 others [2013] KEELC 15 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/15/eng@2013-12-19

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