[2017] KEELC 2327 (KLR)
The court found that the appellants had satisfactorily explained the delay in prosecuting the suit, which was occasioned by the administrative error of transferring the file to a court without jurisdiction (Chuka, which lacked an ELC Court at the material time). The court held that it would be unjust to dismiss the...
Source-derived case information.
- Citation
- [2017] KEELC 2327 (KLR)
- Parties
- Appellant: Desderio Willis Mbaka; Appellant: Wilfred Micheni Njue; Appellant: Justus Mutharaka; Appellant: Japhet Kirimo Nthigai; Appellant: Dorothy Cianduru Justin; Appellant: Selesio Mwikamba; Appellant: Jedida Kagendo Njeru; Appellant: Ashford Nkari; Appellant: Micheni Stanley; Respondent: The Presbyterian Foundation; Respondent: The P.C.E.A. Kambandi Parish; Respondent: Simon Kiema
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 108 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined; suit to proceed.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Transfer of Suit, Environment and Land Court Jurisdiction
- 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
Desderio Willis Mbaka
Appellant
Wilfred Micheni Njue
Appellant
Justus Mutharaka
Appellant
Japhet Kirimo Nthigai
Appellant
Dorothy Cianduru Justin
Appellant
Selesio Mwikamba
Appellant
Jedida Kagendo Njeru
Appellant
Ashford Nkari
Appellant
Micheni Stanley
Appellant
The Presbyterian Foundation
Respondent
The P.C.E.A. Kambandi Parish
Respondent
Simon Kiema
Respondent
Procedural Posture
Civil Appeal / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the transfer of the file to Chuka, which lacked an ELC Court, justified the delay in prosecution.
Ratio Decidendi
The court found that the appellants had satisfactorily explained the delay in prosecuting the suit, which was occasioned by the administrative error of transferring the file to a court without jurisdiction (Chuka, which lacked an ELC Court at the material time). The court held that it would be unjust to dismiss the suit for want of prosecution in these circumstances, as the appellants had demonstrated diligence by filing an application to have the file returned to the proper forum. The court therefore declined to dismiss the suit and issued directions for the filing and exchange of written submissions to facilitate the expeditious hearing of the matter.
Court Disposition
Application for dismissal for want of prosecution declined; suit to proceed.
Orders
- Appellants to file and exchange written submissions within 21 days.
- Respondents to file and exchange written submissions within 21 days after receipt of appellants' submissions.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO 108 OF 2017
FORMERLY CHUKA HCCA NO. 32 OF 2015
FORMERLY MERU HCCA CASE NO. 7 OF 2009
DESDERIO WILLIS MBAKA.......................................1ST APPELLANT
WILFRED MICHENI NJUE..........................................2ND APPELLANT
JUSTUS MUTHARAKA..............................................3RD APPELLANT
JAPHET KIRIMO NTHIGAI..........................................4TH APPELLANT
DOROTHY CIANDURU JUSTIN.................................5TH APPELLANT
SELESIO MWIKAMBA................................................6TH APPELLANT
JEDIDA KAGENDO NJERU.........................................7TH APPELLANT
ASHFORD NKARI.........................................................8TH APPELLANT
MICHENI STANLEY.......................................................9TH APPELLANT
VERSUS
THE PRESBYTERIAN FOUNDATION......................1ST RESPONDENT
THE P.C.E.A. KAMBANDI PARISH..........................2ND RESPONDENT
SIMON KIEMA...........................................................3RD RESPONDENT
RULING
1. Parties were to come to court on 10. 7.2017 to show cause why the suit should not be dismissed for want of prosecution.
2. The Appellants and their advocate, Mark Muriithi, were in court. The defendants and their advocates were not in court.
3. Mr. Muriithi explained to court that when a High Court Station was established at Chuka, the file for this suit was erroneously sent to Chuka which did not have an ELC Court. He told the court that he had filed an application dated 7. 11. 2016 seeking the file to be returned to Meru since Chuka did not have an ELC Court.
4. I find that the appellants have shown to the satisfaction of the court that this suit should NOT be dismissed.
5. The appellants are ordered to file and exchange their written submissions within 21 days of today and the respondents are to do so within 21 days after receipt of the appellants’ written submissions.
6. The advocate for the appellant to serve upon the advocate’s for the respondents the orders issued by the court today within 10 days of today.
7. Costs shall be in the cause.
8. Directions on 26. 9.2017.
9. It is so ordered.
Delivered in open court at Chuka this 10th day of July, 2017 in the presence of:
CA: Ndegwa
Muriithi for the Appellants
P. M. NJOROGE
JUDGE