[2019] KEELC 2438 (KLR)
The court found that the plaintiff had made several documented attempts to settle the dispute out of court through alternative dispute resolution mechanisms, as encouraged by Article 159(2)(c) of the Constitution. The delay of 13 months in setting the matter down for hearing was not considered unreasonable in light...
Source-derived case information.
- Citation
- [2019] KEELC 2438 (KLR)
- Parties
- Plaintiff: Antony Mwau Wambua; Defendant: Kenya Power & Lighting Co. Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 172 of 2016
- Procedural Posture
- Dismissal Application / Ruling on Application to Dismiss Suit for Want of Prosecution
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Alternative Dispute Resolution, Mediation Attempts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Antony Mwau Wambua
Plaintiff
Kenya Power & Lighting Co. Ltd
Defendant
Procedural Posture
Dismissal Application / Ruling on Application to Dismiss Suit for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to a 13-month delay by the plaintiff in taking steps to prosecute the matter.
- 2 Whether the plaintiff's attempts at alternative dispute resolution constitute a reasonable explanation for the delay.
Ratio Decidendi
The court found that the plaintiff had made several documented attempts to settle the dispute out of court through alternative dispute resolution mechanisms, as encouraged by Article 159(2)(c) of the Constitution. The delay of 13 months in setting the matter down for hearing was not considered unreasonable in light of these efforts. Therefore, the application to dismiss the suit for want of prosecution was dismissed, as the plaintiff's conduct did not amount to inordinate or inexcusable delay.
Court Disposition
application dismissed
Orders
- The application dated 30th October, 2018 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 172 OF 2016
ANTONY MWAU WAMBUA.............................PLAINTIFF/RESPONDENT
VERSUS
KENYA POWER & LIGHTING CO.LTD.........DEFENDANT/APPLICANT
RULING
1. In the Application dated 30th October, 2018, the Defendant is seeking for the dismissal of the suit for want of prosecution. The Application is premised on the grounds that the Plaintiff has not taken any steps to prosecute the matter for over one (1) year; that the matter was last in court on 22nd September, 2017 when the court delivered its Ruling and that the Plaintiff has lost interest in the suit.
2. In his response, the Plaintiff deponed that after the Ruling of 22nd September, 2018, he tried to have the suit settled amicably through the Judiciary Annexed Alternative Mediation which he initiated with the Defendant and that he has always been interested in prosecuting the suit. Both parties relied on their respective Affidavits.
3. Before the Defendant filed the Application dated 30th October, 2018 on 1st November, 2018, the court had dismissed the Plaintiff’s Application dated 27th October, 2016. The Ruling of the court was delivered on 22nd September, 2018.
4. Between the time that the current Application was filed and when the matter was last in court, a period of one (1) year and one (1) month (13 months)had lapsed.
5. The Plaintiff has produced in evidence several letters that he wrote to the Defendant in his attempt to negotiate the matter out of court. Indeed, Article 159(2) (b) of the Constitution encourages parties to pursue alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
6. In view of the several attempts that the Plaintiff made to settle the dispute out of court, I find that a delay of 13 months to fix the matter for hearing is not unreasonable. In the circumstances, I dismiss the Application dated 30th October, 2018 but with no order as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 12TH DAY OF JULY, 2019.
O.A. ANGOTE
JUDGE