[2014] KEELC 276 (KLR)
The court found that the plaintiff had taken no steps to prosecute the suit since its filing in 2009, and no response was filed to the application for dismissal. Under Order 17 Rule 2 of the Civil Procedure Rules, if no action is taken for over a year, the court may dismiss the suit for want of prosecution. The...
Source-derived case information.
- Citation
- [2014] KEELC 276 (KLR)
- Parties
- Plaintiff: Cherop Chepsergon; Defendant: Richard Chebon Chepsergon
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 503 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order 17 Rule 2, Suit Dismissal, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cherop Chepsergon
Plaintiff
Richard Chebon Chepsergon
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether the plaintiff has taken any steps to prosecute the suit since its filing.
- 3 Whether the defendant is entitled to costs upon dismissal.
Ratio Decidendi
The court found that the plaintiff had taken no steps to prosecute the suit since its filing in 2009, and no response was filed to the application for dismissal. Under Order 17 Rule 2 of the Civil Procedure Rules, if no action is taken for over a year, the court may dismiss the suit for want of prosecution. The defendant, as a party, was entitled to bring the application. The absence of any opposition or explanation from the plaintiff indicated a lack of interest in pursuing the matter. Consequently, the court exercised its discretion to dismiss the suit for want of prosecution and awarded costs to the defendant.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The plaintiff's suit is dismissed for want of prosecution under Order 17 Rule 2(3) of the Civil Procedure Rules.
- The plaintiff shall bear the costs of the application and the suit.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L NO. 503 OF 2012
Formerly HCC No. 49 of 2009
CHEROP CHEPSERGON.............................................................PLAINTIFF
VS
RICHARD CHEBON CHEPSERGON............................................DEFENDANT
(Application for dismissal for want of prosecution; suit filed in the year 2009; no action taken in the suit since it was filed; no response to application for dismissal; application allowed; suit dismissed for want of prosecution with costs)
RULING
The application before me is a Motion filed by the defendant pursuant to the provisions of Order 17 Rule 2 of the Civil Procedure Rules, 2010. It seeks to have this suit dismissed for want of prosecution. The application is based on grounds inter alia that the suit has been pending for more than one year and the plaintiff has not taken any step to prosecute it. The application is supported by the affidavit of the defendant.
Order 17 Rule 2 provides as follows :-
Notice to show cause why suit should not be dismissed [Order 17, rule 2. ]
(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
(4) The court may dismiss the suit for non-compliance with any direction given under this Order.
I have perused the record herein. It shows that this suit was filed on 7 April 2009 by way of plaint through the law firm of M/s Kiplagat J. Misoi & Company Advocates. The plaintiff's case is that he is the beneficiary of a land parcel Baringo/Kapropita/283. The defendant filed Defence on 23 April 2009 in which the plaintiff's claims were denied. The defendant averred that he is the registered proprietor of the suit land and was issued with title documents in the year 1985. No action was ever taken by the plaintiff to do anything after the defence was filed.
It will be seen from a reading of Order 17 Rule 2, that if no step is taken for one year, any party may apply to have the suit dismissed for want of prosecution. Despite being served with the subject application, the defendant has filed no response to the same. He has clearly lost interest in this suit.
I have no reason not to allow this application. I allow it. The plaintiff's suit is hereby dismissed for want of prosecution under Order 17 Rule 2(3) of the Civil Procedure Rules. The plaintiff will also shoulder the costs of this application and of this suit.
It is so ordered.
DATED AND DELIVERED AT ELDORET THIS 30TH DAY OF JULY 2014
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET.
Delivered in the presence of:
M/s Mirugi Kariuki & Co for defendant/applicant – Absent.
M/s Kiplagat J. Misoi for plaintiff/respondent – Absent.