[2017] KEELC 2559 (KLR)
The court found that the Plaintiff had failed to take any steps to prosecute the suit for over five years, and no explanation for the delay was provided. The Plaintiff also failed to substitute the 3rd and 4th Defendants, who were deceased as of 10th January 2011, rendering the suit against them a non-starter. The...
Source-derived case information.
- Citation
- [2017] KEELC 2559 (KLR)
- Parties
- Plaintiff: Eliud Nyaga Namu Thigari; Defendant: Robert Kiriga Mwarania; Defendant: Duncan Elias Muturi; Defendant: Geofrey Ireri; Defendant: Muriru Mucumo; Defendant: Ireri Mwarania; Defendant: Josephat Ngungi Njeru; Defendant: Mucumo Mwarania
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 95 of 2013
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application allowed; suit dismissed against some defendants for want of prosecution; suit abated against deceased defendants; costs to defendants
- Legal Topics
- Dismissal for Want of Prosecution, Abatement of Suit, Substitution of Parties, Delay in Prosecution
- 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
Eliud Nyaga Namu Thigari
Plaintiff
Robert Kiriga Mwarania
Defendant
Duncan Elias Muturi
Defendant
Geofrey Ireri
Defendant
Muriru Mucumo
Defendant
Ireri Mwarania
Defendant
Josephat Ngungi Njeru
Defendant
Mucumo Mwarania
Defendant
Procedural Posture
Civil 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 inordinate delay by the Plaintiff.
- 2 Whether the suit has abated against the 3rd and 4th Defendants who were deceased and not substituted.
- 3 Whether costs should be awarded to the Defendants.
Ratio Decidendi
The court found that the Plaintiff had failed to take any steps to prosecute the suit for over five years, and no explanation for the delay was provided. The Plaintiff also failed to substitute the 3rd and 4th Defendants, who were deceased as of 10th January 2011, rendering the suit against them a non-starter. The court exercised its discretion under Order 17 Rule 2 of the Civil Procedure Rules to dismiss the suit against the 1st, 2nd, 5th, 6th, and 7th Defendants for want of prosecution. The suit against the 3rd and 4th Defendants was declared abated due to non-substitution. Costs were awarded to the Defendants. The court declined to declare that the suit had abated against all...
Court Disposition
application allowed; suit dismissed against some defendants for want of prosecution; suit abated against deceased defendants; costs to defendants
Orders
- The Plaintiff’s suit against the 1st, 2nd, 5th, 6th and 7th Defendants is dismissed with costs for want of prosecution.
- It is declared that the suit as against the 3rd and 4th Defendants has abated.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE E.L.C. COURT OF KENYA AT EMBU
E.L.C. NO. 95 OF 2013
FORMERLY HCC NO. 187 OF 2010
ELIUD NYAGA NAMU THIGARI…………..…………PLAINTIFF/RESPONDENT
VERSUS
ROBERT KIRIGA MWARANIA………..………….1ST DEFENDANT/APPLICANT
DUNCAN ELIAS MUTURI……………..……..…...2ND DEFENDANT/APPLICANT
GEOFREY IRERI……………………..……………3RD DEFENDANT/APPLICANT
MURIRU MUCUMO……………………………….4TH DEFENDANT/APPLICANT
IRERI MWARANIA…………………..…...………..5TH DEFENDANT/APPLICANT
JOSEPHAT NGUNGI NJERU………..…………....6TH DEFENDANT/APPLICANT
MUCUMO MWARANIA……………..……………7TH DEFENDANT/APPLICANT
RULING
1. By a Notice of Motion dated and filed on 11th December 2012, the Defendants sought orders for dismissal of the suit for want of prosecution. The Defendant also sought a declaration that the suit had abated against all the Defendants and that costs of the application be provided for.
2. The said application was supported by the affidavit of the 1st Defendant who swore it on his behalf of himself and on behalf of the 2nd, 5th, 6th and 7th Defendants. The 3rd and 4th Defendants are said to have died before the filing of the suit and despite the Plaintiff being accorded an opportunity to substitute them in 2011, the Plaintiff had not taken any steps in that regard.
3. It is also sworn in the said affidavit that the suit was last listed for hearing on 2nd November 2011 when the matter could not proceed and that the Plaintiff had not taken any steps since then to have the suit prosecuted.
4. The Plaintiff’s advocate, Mr Mogusu & Co Advocates, did not file any response to the said application and neither did he attend court on 19th April 2017 when the said application was listed for hearing. The court, therefore, allowed the Defendants’ advocate to prosecute the said application ex-parte.
5. Mr A.P. Kariithi Advocate for the Defendants relied entirely upon the grounds shown on the face of the said Notice of Motion together with the 1st Defendant’s supporting affidavit. He pointed out that the Plaintiff had not taken any steps to prosecute the suit in the last five years and asked the court to grant the prayers sought.
6. I have considered the said application and noted that it is not opposed by the Plaintiff. No explanation has been tendered for the delay of several years in the prosecution of the suit. Where there is inordinate delay in the prosecution of a suit, the court has power to dismiss it for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules, seeNilan v. Patel & others [1969] EA 340. In the circumstances of this case, the court shall dismiss the suit as against the 1st, 2nd, 5th, 6th & 7th Defendants for want of prosecution under Order 17 Rule of the Civil Procedure Rules.
7. In the replying affidavit sworn by the 1st Defendant, Robert Kiriga Mwarania on 10th January 2011 in response to the Originating Summons dated 15th December 2010, he swore at paragraph 2 that the 3rd and 4th Defendants were deceased and that they could not defend themselves. There is no affidavit or other materials on record to the contrary. I therefore accept the evidence by the 1st Defendant that the 3rd and 4th Defendants were deceased, at any rate, as at 10th January 2011.
8. It is also apparent from the court file that those 2 Defendants have never been substituted and as such the suit against them is really a non-starter. The court shall, therefore, grant the declaration sought for abatement of the suit as against the 3rd and 4th Defendants. There is no justification for a declaration that the suit has abated against all the Defendants as sought in the Notice of Motion dated 11th November 2012.
9. The upshot of the foregoing is that the Notice of Motion dated 11th November 2012 has merit and the same is allowed in the following terms:
a. The Plaintiff’s suit against the 1st, 2nd, 5th, 6th and 7th Defendants is hereby dismissed with costs for want of prosecution.
b. It is hereby declared that the suit as against the 3rd and 4th Defendants has abated.
c. of the application to the Defendants.
10. Orders accordingly.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this21st day of JUNE 2017.
In the presence of Mr A.P. Kariithi for the Defendants and in the absence of the Plaintiff.
Court clerk Njue/Leadys
Y.M. ANGIMA
JUDGE
21. 06. 17