[2019] KEELC 3063 (KLR)
The court found that the Plaintiff failed to provide any credible explanation for not fixing the matter for hearing for over four years since filing the suit. The Plaintiff's advocate admitted receiving the notice to show cause, and the court found it implausible that the notice remained uncollected for four months....
Source-derived case information.
- Citation
- [2019] KEELC 3063 (KLR)
- Parties
- Plaintiff: Eric Karimi Eustace; Defendant: Susan Njoki Njuguna; Defendant: Land Registrar Machakos
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 59 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Service of Notice, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eric Karimi Eustace
Plaintiff
Susan Njoki Njuguna
Defendant
Land Registrar Machakos
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the Plaintiff has provided sufficient reason to set aside the dismissal of the suit for want of prosecution.
- 2 Whether the service of the notice to show cause was properly effected on the Plaintiff's advocate.
- 3 Whether the Plaintiff's failure to prosecute the suit for over four years is excusable.
Ratio Decidendi
The court found that the Plaintiff failed to provide any credible explanation for not fixing the matter for hearing for over four years since filing the suit. The Plaintiff's advocate admitted receiving the notice to show cause, and the court found it implausible that the notice remained uncollected for four months. Even if the notice was received after dismissal, the Plaintiff did not explain the prolonged inaction. The court held that the Plaintiff had not demonstrated sufficient cause to warrant setting aside the dismissal, and thus the application lacked merit.
Court Disposition
application dismissed
Orders
- The Application dated 19th November, 2018 is dismissed with no order as to costs.
- The suit stands dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 59 OF 2014
ERIC KARIMI EUSTACE.............................PLAINTIFF
VERSUS
SUSAN NJOKI NJUGUNA..................1ST DEFENDANT
LAND REGISTRAR MACHAKOS...2ND DEFENDANT
RULING
1. In the Application dated 19th November, 2018, the Plaintiff is seeking to set aside the orders of this court that were issued on 13th April, 2018 dismissing the suit for want of prosecution.
2. The Application is premised on the grounds that the failure by the Plaintiff to attend court on 13th April, 2018 was unintentional; that the Applicant’s advocate received the Notice to show cause why the suit should not be dismissed via post several months after the date that the matter came up for dismissal and that the Plaintiff should be given an opportunity to prosecute the suit. The Application was not opposed by the Defendants.
3. The record shows that this suit was filed on 24th July, 2014. Although the Defendants were served with Summons to Enter Appearance, it is only the 2nd Defendant who entered appearance and filed a Defence. Despite the suit having been filed in the year 2014, the Plaintiff never fixed the matter either for pre-trial directions or hearing. Indeed, the Plaintiff did not attempt to fix the matter for mention or hearing at all.
4. The Notice to show cause why the suit should not be dismissed for want of prosecution was duly served on the Plaintiff’s advocate via post. The Plaintiff’s advocate has admitted that he received the said notice. According to counsel, he received the notice four (4) months after the matter had already been dismissed.
5. Having admitted that the postal address on the Notice to show cause is indeed his, it is inconceivable that the notice to show cause dated 26th February, 2018 stayed at the post office for over four (4) months before being “posted” in the Plaintiff’s postal address. The Plaintiff’s advocate must have received the said notice before the matter came up for dismissal on 27th February, 2019.
6. Even if the Plaintiff’s advocate received the notice way after the matter had been dismissed, the Plaintiff has not offered any explanation as to why he never fixed the matter for hearing since he filed the suit. Having not offered any explanation why he never fixed the matter for hearing for more than four (4) years, I find that the Application dated 19th November, 2018 is unmeritorious. The Application is therefore dismissed with no order as to costs. For avoidance of doubt, the suit stands dismissed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 31ST DAY OF MAY, 2019.
O.A. ANGOTE
JUDGE