[2018] KEELC 1883 (KLR)
The court found that although there had been a delay of more than 12 months in prosecuting the suit, the plaintiff had approached the court in good faith and the delay was attributable to counsel. The court exercised its discretion not to dismiss the suit, emphasizing that litigants should not be punished for the...
Source-derived case information.
- Citation
- [2018] KEELC 1883 (KLR)
- Parties
- Plaintiff: Constantine J. Kangogo (Legal Representative of the Estate of Wilfred Kimaiyo Mondy); Defendant: Festus Rutto Tailem; Defendant: Edinah Jepkoech
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 364 of 2014
- Procedural Posture
- Land and Property Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined; costs awarded to defendant.
- Judges
- A Ombwayo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Transfer of Suit, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Constantine J. Kangogo (Legal Representative of the Estate of Wilfred Kimaiyo Mondy)
Plaintiff
Festus Rutto Tailem
Defendant
Edinah Jepkoech
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 for over 12 months.
- 2 Whether the plaintiff's explanation for the delay is sufficient to avoid dismissal.
- 3 Whether costs should be awarded to the defendant.
Ratio Decidendi
The court found that although there had been a delay of more than 12 months in prosecuting the suit, the plaintiff had approached the court in good faith and the delay was attributable to counsel. The court exercised its discretion not to dismiss the suit, emphasizing that litigants should not be punished for the mistakes of their advocates. However, the court awarded costs of Kshs. 5,000 to the defendant as a consequence of the delay and directed that the matter be set down for hearing.
Court Disposition
Application for dismissal for want of prosecution declined; costs awarded to defendant.
Orders
- The application to dismiss the suit for want of prosecution is declined.
- The plaintiff shall pay the defendant costs of Kshs. 5,000 before the next hearing.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 364 OF 2014
CONSTANTINE J. KANGOGO
(Legal Representative of the Estate of Wilfred Kimaiyo Mondy).......PLAINTIFF
VERSUS
FESTUS RUTTO TAILEM..........................................................1ST DEFENDANT
EDINAH JEPKOECH.................................................................2ND DEFENDANT
RULING
The 1st defendant applies to dismiss the suit herein for want of prosecution on grounds that more than one year has lapsed without the plaintiff setting the suit down for hearing.
The plaintiff in reply claims that she has been going to see her advocates in the matter and that she is advised by the advocates that the matter be transferred to the Lower Court.
I do find the plaintiff’s explanation for the delay insufficient as the case has stalled for more than 12 months. There is no application to transfer the matter to the Lower Court.
However, since the plaintiff has approached the seat of justice in good faith, I do decline to grant the orders sought in the application. Moreover, it appears the delay has been occasioned by counsel and I do not intend to punish the plaintiff for the mistake of counsel. However, I do grant the defendant costs of Kshs. 5,000 to be paid before the next hearing. The matter is set down for hearing on 26. 2.2019.
Dated, signed and delivered at Eldoret this 30th day of July, 2018.
A. OMBWAYO
JUDGE