[2018] KEELC 3205 (KLR)
The court found that the petitioner failed to substitute the deceased within the 45 days granted, in disobedience of a court order. The petitioner had also filed multiple suits over the same subject matter, which the court deemed an abuse of the court process. The cumulative conduct of the petitioner, including...
Source-derived case information.
- Citation
- [2018] KEELC 3205 (KLR)
- Parties
- Applicant: Damson Miano Kangangi; Respondent: The Land Registrar Chuka; Respondent: The Hon. Attorney General; Interested Party: Wachira Robert Nyaga; Interested Party: Bonface Mbogo Njogu; Interested Party: Agnes Njoki Njogu; Interested Party: Michael Njagi Njogu; Interested Party: John Murithi Njogu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- ? 10 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Application for Substitution and Dismissal for Want of Prosecution
- Outcome
- petition dismissed for want of prosecution and abuse of process
- Judges
- FM Njoroge
- Legal Topics
- Abuse of Court Process, Substitution of Deceased Party, Dismissal for Non Prosecution, Parallel Suits, Inhibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damson Miano Kangangi
Applicant
The Land Registrar Chuka
Respondent
The Hon. Attorney General
Respondent
Wachira Robert Nyaga
Interested Party
Bonface Mbogo Njogu
Interested Party
Agnes Njoki Njogu
Interested Party
Michael Njagi Njogu
Interested Party
John Murithi Njogu
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Application for Substitution and Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the failure to substitute the deceased petitioner within the granted period warrants dismissal of the petition.
- 2 Whether the petitioner abused the court process by filing multiple suits over the same subject matter.
- 3 Whether the inhibition orders over the suit properties should be vacated.
Ratio Decidendi
The court found that the petitioner failed to substitute the deceased within the 45 days granted, in disobedience of a court order. The petitioner had also filed multiple suits over the same subject matter, which the court deemed an abuse of the court process. The cumulative conduct of the petitioner, including non-compliance with court directions and pursuit of parallel litigation, justified dismissal of the petition. The court further held that the inhibition orders previously granted were now spent and should be vacated. Costs were awarded to the respondents and interested parties.
Court Disposition
petition dismissed for want of prosecution and abuse of process
Orders
- The petition is dismissed.
- All inhibitions placed against land parcels MAGUMONI/ITUGURURU/1997, 1998, 1999, 2002, 2004, 2068, 2044, 2045, 2069, 2532 and 2533 are vacated forthwith.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC PETITION CASE NO. 10 OF 2017
DAMSON MIANO KANGANGI.......................PETITIONER
VERSUS
THE LAND REGISTRAR CHUKA.........1ST RESPONDENT
THE HON. ATTORNEY GENERAL......2ND RESPONDENT
WACHIRA ROBERT NYAGA.....1ST INTERESTED PARTY
BONFACE MBOGO NJOGU......2ND INTERESTED PARTY
AGNES NJOKI NJOGU...............3RD INTERESTED PARTY
MICHAEL NJAGI NJOGU.........4TH INTERESTED PARTY
JOHN MURITHI NJOGU............5TH INTERESTED PARTY
RULING
1. On 7th February, 2018, the Petitioner’s advocate, Mr. Ondari asked the court to grant him 45 days to substitute the deceased petitioner. His prayer was granted. The parties were directed to come to court for directions on 26th April, 2018.
2. On 26th April, 2018, Mr. Ondari did not come to court. Mr. Manasses Kariuki held brief for advocate Ithiga for the 1st, 2nd, 3rd, 4th and 5th Interested Parties. Miss Mbaikiata, representing the 1st and 2nd Respondents was present in court. Mr.Wachira Robert Nyaga, the 1st Interested Party, who represents himself in this matter was also present in court.
3. Mr. Kariuki told the court that as Mr. Ondari was not in court to explain why the Petitioner had not been substituted, this petition should be dismissed. He told the court that Mr. Ithiga, had not received an application for substitution of the deceased petitioner. Mr. Kariuki termed this conduct as an abuse of the court process. Miss Mbaikiata, agreed with the sentiments expressed by Mr. Kariuki and asked the court to dismiss the suit. She said that the absence in court of the Petitioner’s advocate was indicative of the Petitioner’s aim to merely delay the hearing of the matter.
4. I do note that 2 suits filed by the Petitioner were dismissed by this court. In ELC 131 of 2017, the 3rd defendant was the 2nd Interested Party in this matter. This suit was marked as withdrawn at the instance of the Petitioner’s advocate on 28th February, 2018. In ELC 137 of 2017, the 1st Interested Party was the 2nd defendant. The 2nd Interested Party was the 8th defendant. The 3rd Interested Party was the 7th defendant. The 4th Interested Party was the 10th defendant. The 5th Interested Party was the 5th defendant. This was dismissed by the court for non-prosecution on 21st November, 2017.
5. It is clear that the Petitioner had sought judicial relief in 3 suits which all concerned the same suit land. I opine that this conduct amounts to a veritable abuse of the court process. In his supporting affidavit sworn on 17th August, 2017 and filed in court on the same day, the Petitioner intimates that he had filed Meru HCCC. 23 of 2011 and 38 of 2011 by way of Originating Summons. In paragraph 18 of the supporting affidavit he nebulously states: “THAT for one reason or another these cases were not heard on merit. They have since been withdrawn.”
6. That the Petitioner had pursued his claim through many suits amounts to abuse of the court process. That this Petition was filed when the Petitioner had not concluded prosecution of other suits he had filed, amounts to conduct that this court deprecates. That his advocate has failed to have the Petitioner substituted, even though he is the one who moved the court to grant him 45 days to do so, exercabates the situation.
7. The Petitioner having not made the apposite substitution within the stipulated time, this conduct, evincing disobedience of a court order, and taking into account the general conduct of the Petitioner in at least three other suits where he sought to prosecute parallel suits concerning the same subject matter, I find it meritorious to dismiss this suit.
8. In the circumstances, this suit is dismissed.
9. I do note that prayer (b) for inhibition granted on 18th September, 2017 is spent. However, for avoidance of doubt, the inhibitions placed against land parcels MAGUMONI/ITUGURURU/1997, 1998, 1999, 2002, 2004, 2068, 2044, 2045, 2069, 2532 and 2533 are VACATED forthwith.
10. Costs are awarded to the Respondents and to the Interested Parties.
11. It is so ordered.
Delivered in open court at Chuka this 22nd day of May, 2018 in the presence of:
CA: Ndegwa
Mokua for Njeru Ithiga for 1st, 2nd, 3rd, 4th & 5th Interested Parties
Other parties absent
P.M. NJOROGE
JUDGE