[2019] KEELC 2051 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO 583 OF 2016

DICKSON NGIGE NGUGI………….........................................…………….PLAINTIFF

VERSUS

CONSOLIDATED BANK LTD(Formerly

JIMBA CREDIT CORPORATION LIMITED…………….…....………1ST DEFENDANT

MATHEW NDONGA KABAUTHE REGISTERED TRUSTEES

OF THE CATHOLIC DIOCESE OF NAKURU……………..……..2ND DEFENDANT

RULING

(Application to dismiss suit for want of prosecution; suit filed in December 2016; defences filed in May 2017; application filed in January 2019; there being a record that plaintiff had applied for a mention date in June 2018; court cognisant of practice of a party filing a letter for a date with no intention of doing so but giving the plaintiff benefit of doubt; application dismissed)

1. The application before me is that dated 10 January 2019 filed by the 1st defendant. It is an application seeking orders that this suit be dismissed for want of prosecution.

2. To put matters into context, this suit was commenced by way of a plaint which was filed on 19 December 2016. The plaintiff pleaded that in the year 1991, he borrowed a loan of Kshs. 300,000/= from Jimba Credit Corporation Limited (now the 1st defendant/applicant) and gave out the land parcel LR No. 1117/1 (grant No. IR 31947) as security. It is contended that the purported security did not meet the legal threshold as neither the plaintiff nor the 1st defendant sought the consent of the Land Control Board. The plaintiff avers that the suit land is agricultural land and under the provisions of the Land Control Act, all transactions required the consent of the Land Control Board. It is pleaded that in September 1985, the 1st defendant sold the land to the 2nd defendant by way of a public auction without seeking Land Control Board consent which resulted into a void transaction. It is further pleaded that the 1st defendant had no right to sell and therefore the 2nd defendant acquired no title. It is pleaded that in the year 1996, the land was unlawfully sold to the 3rd defendant and the plaintiff contends that the transaction is null and void. In the suit, the plaintiff asks for orders for a declaration that the purported charge over the suit land and all subsequent transfers are null and void, a declaration that the sale to the 2nd defendant and the later sale to the 3rd defendant are null and void, cancellation of the title of the 3rd defendant and the same to be registered in the name of the plaintiff, a declaration that the suit land belongs to the plaintiff, damages for unlawful sale of the suit land and costs of the suit.

3. The 1st defendant entered appearance on 7 March 2017 and filed defence on 22 March 2017. The 3rd defendant entered appearance on 7 April 2017 and on 9 May 2017, the 3rd defendant filed defence and filed its statements and documents. There is a letter in the file dated 8 June 2017 and received on even date, from M/s Ndeda & Associates, the law firm on record for the plaintiff, requesting for a mention date for directions. I do not see any date in the record. Nothing transpired after that until this application was filed.

4. The supporting affidavit to the application avers that the plaintiff has never listed his suit for pre-trial and it is the view of the applicant that the plaintiff has lost interest in the suit.

5. The plaintiff did not file anything to respond to the motion but Ms. Cheruto, learned counsel for the plaintiff, did submit from the bar that they attempted to fix a mention date for directions and the information received was that there were no dates.

6. This is an application for dismissal for want of prosecution and therefore Order 17 Rule 2 applies. The said provision is drawn 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.

7. It will be seen from the above that where no step is taken for a year, the court itself may issue a notice to show cause why the suit should not be dismissed, or any party may apply for the dismissal of the suit for want of prosecution.

8. In our instance, this case was filed on 9 December 2016. The defences were filed on 22 March and 9 May 2017. There was certainly a lull, for the request for a mention date was done on 8 June 2018, which is about a year after the defence of the 3rd defendant was filed. This application was made about 6 months after that.

9. I think the letter of 8 June 2018, was a step towards trying to fix the case for mention and despite not having sworn an affidavit, I am aware that owing to congestion of the court diary, sometimes it is not easy to come across dates. If I consider that letter as a step towards prosecuting the matter, then the mandatory 1 year had not lapsed to the time that this application was filed and it would mean that this application is premature. I am not in any way not acknowledging that there may not be a practice where a party merely delivers a letter to court with no intention of taking a date, so as to purport to be keen to take a date, and I think that if the court is persuaded that this was only technically done, the court can in its discretion still consider that no step has been taken in the matter, and discount such letter in the computation of time. However, in the circumstances of this suit, I will give benefit of doubt to the plaintiff.

10. I will therefore not dismiss the matter but will give a chance to the plaintiff to ventilate his case.

11. For the above reasons, I will dismiss the application dated 10 January 2019, but make no orders as to costs.

Dated, signed and delivered in open court at Nakuru this 4th day of July 2019.

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU

In presence of :-

Ms. Halai for the 1st defendant/applicant.

Ms. Cheruto for the plaintiff/respondent

No appearance for 2nd defendant.

Court Assistants :Nelima Janepher /Patrick Kemboi

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU