[2021] KEELC 2888 (KLR)
The court found that the plaintiff had not taken any action to prosecute the suit since its filing in 2014, with no attendance or steps taken at mentions in 2014, 2017, and 2018. The plaintiff was served with the application for dismissal but failed to respond or provide any explanation for the delay. The court held...
Source-derived case information.
- Citation
- [2021] KEELC 2888 (KLR)
- Parties
- Plaintiff: Allan Kimeu Kivuva (Suing as the legal representative of the Estate of Kibuba Mwikya Musyoki, deceased); Defendant: Lawrence Kilee Kithongo; Defendant: Daniel Kithongo; Defendant: Esther Mwikali Kithongo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 6 of 2014
- Procedural Posture
- Land and Property Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Service of Process, Estate Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allan Kimeu Kivuva (Suing as the legal representative of the Estate of Kibuba Mwikya Musyoki, deceased)
Plaintiff
Lawrence Kilee Kithongo
Defendant
Daniel Kithongo
Defendant
Esther Mwikali Kithongo
Defendant
Procedural Posture
Land and Property Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction by the plaintiff.
- 2 Whether proper service of the application for dismissal was effected on the plaintiff.
Ratio Decidendi
The court found that the plaintiff had not taken any action to prosecute the suit since its filing in 2014, with no attendance or steps taken at mentions in 2014, 2017, and 2018. The plaintiff was served with the application for dismissal but failed to respond or provide any explanation for the delay. The court held that no sufficient reason was given for the inaction, and the requirements for dismissal for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules were satisfied. Accordingly, the suit was dismissed with costs to the defendants.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- The plaintiff shall pay the costs of the suit to the defendants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 6 OF 2014
ALLAN KIMEU KIVUVA(Suing as the legal representativeof theEstate of
KIBUBA MWIKYA MUSYOKI (deceased).............................................PLAINTIFF
VERSUS
LAWRENCE KILEE KITHONGO...............................................1ST DEFENDANT
DANIEL KITHONGO...................................................................2ND DEFENDANT
ESTHER MWIKALI KITHONGO..............................................3RD DEFENDANT
RULING
1. In the Notice of Motion dated 20th July, 2020, the Defendants have sought for the following reliefs:
a.That the suit be dismissed for want of prosecution by the Plaintiff/Respondent.
b.That costs of this Application be provided for.
2. The Application is supported by the Affidavit of the Defendants’ advocate who has deponed that the Plaintiff has not bothered to set down the matter for directions or for hearing and that it is over three (3) years since this suit was last in court.
3. According to the Plaintiff’s advocate, it is the Defendants who invited the Plaintiff to fix dates the last time the matter was fixed for directions in the years 2014 and 2017 and that the suit should be dismissed for want of prosecution.
4. The Affidavit of Service shows that when the Defendants’ advocate attempted to serve the Plaintiff’s advocate with the Application, he was informed that the said advocate had passed on. The Defendants’ advocate deponed that the Application and the hearing notice was served personally on the Plaintiff at his home in Matetani in Kangundo, Machakos County.
5. The record shows that after this suit was filed in the year 2014, it came up for mention on 28th January, 2014; 16th February, 2017 and 8th October, 2018. On all the three occasions, neither the Plaintiff nor their advocate were in court. Indeed, the Plaintiff has never taken any action in this matter since the year 2014 when the matter was filed.
6. Although the Plaintiff was made aware of the Application dated 20th July, 2020, he did not bother to respond. Having gone through the record, it is my finding that no reason has been given as to why this suit has not been fixed for hearing or pre-trial directions taken since 8th October, 2018 when the Defendants’ Application dated 6th April, 2018 was allowed.
7. For those reasons, I allow the Application dated 20th July, 2020. This suit is dismissed with costs for want of prosecution.
DATED, SIGNED AND DELIVERED VIRTUALLY IN MACHAKOS THIS 11TH DAY OF JUNE, 2021.
O. A. ANGOTE
JUDGE