[2017] KEELC 317 (KLR)
The court found that although there was a seven-month delay in prosecuting the suit, such delay in a land matter is excusable. The court emphasized that the duty to progress the case lies with the plaintiff, but also considered that justice requires balancing the interests of both parties. The application to dismiss...
Source-derived case information.
- Citation
- [2017] KEELC 317 (KLR)
- Parties
- Plaintiff: Ernest Mangala Ayugi; Defendant: Julius Omondi Ogola
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 83 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Dismiss Suit for Want of Prosecution
- Outcome
- Application dismissed with conditions.
- Judges
- NA Matheka
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ernest Mangala Ayugi
Plaintiff
Julius Omondi Ogola
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Dismiss Suit for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution due to a seven-month delay.
- 2 Whether the delay in prosecuting the suit is prolonged and inexcusable.
Ratio Decidendi
The court found that although there was a seven-month delay in prosecuting the suit, such delay in a land matter is excusable. The court emphasized that the duty to progress the case lies with the plaintiff, but also considered that justice requires balancing the interests of both parties. The application to dismiss the suit for want of prosecution was found to lack merit, and the court dismissed it on the condition that the plaintiff must take a hearing date within thirty days. Costs were ordered to be in the cause.
Court Disposition
Application dismissed with conditions.
Orders
- The application to dismiss the suit for want of prosecution is dismissed.
- The plaintiff/respondent must take a hearing date in the registry within thirty (30) days from the date of the ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 83 OF 2016
ERNEST MANGALA AYUGI :::::::::::::::::::PLAINTIFF/RESPONDENT
VERSUS
JULIUS OMONDI OGOLA ::::::::::::::::::::::DEFENDANT/APPLICANT
RULING
This application is dated 19th May 2017 seeking the following orders;
1. THAT the plaintiff’s suit be dismissed for want of prosecution.
2. Costs be provided for.
It is based on the following grounds; that the plaintiff/respondent has never taken the initiative to list this suit for hearing. The suit has been pending for the last (7) months.
The applicant/defendant submitted that this suit was instituted in this court by the plaintiff/respondent herein on 24th May 2016. That since the time of filing this suit the plaintiff has never taken any step to have the suit listed for hearing. That if at all any one time the suit was once listed for hearing then the step was taken by himself when he listed the suit for hearing on 12th October 2016. That it is now seven (7) months since he last listed the case for hearing and the plaintiff and/or his advocate has not made any effort to have the case listed for hearing. That it appears that the plaintiff is not keen to have this suit heard. That it also appears that the plaintiff only filed this suit to delay justice as there is a Succession Cause pending confirmation.
The plaintiff/respondent submitted that the application is premature as directions on how to proceed with the suit have not been given and they relied on the grounds of opposition filed in court on the 17th November 2017.
This court has carefully considered both the applicants and the respondent’s submissions. It is based on the following grounds; that the plaintiff/respondent has never taken the initiative to list this suit for hearing. The suit has been pending for the last (7) months.
In the case of Utalii Transport Company Ltd & 3 Others v NIC Bank & Another (2014) eKLR, the court held that it is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court. The decision on whether the suit should be reinstated for trial is a matter of justice and it depends on the facts of the case. In Ivita v Kyumbu (1984) KLR 441, Chesoni J as he then was, stated that the test is whether the delay is prolonged and inexcusable and if justice will be done despite the delay. Justice is justice for both the plaintiff and the defendant. The applicant in the instant case submitted this suit was instituted in this court by the plaintiff/respondent herein on 24th May 2016. That since the time of filing this suit the plaintiff has never taken any step to have the suit listed for hearing. That if at all any one time the suit was once listed for hearing then the step was taken by himself when he listed the suit for hearing on 12th October 2016. That it is now seven (7) months since he last listed the case for hearing and the plaintiff and/or his advocate has not made any effort to have the case listed for hearing. I find that this is a land matter and 7 months delay is excusable. This application has no merit and I dismiss it on condition that the plaintiff/respondent takes a hearing date in the registry within the next thirty (30) days from today’s date. Costs of this application to be in the cause.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 14TH DAY OF DECEMBER 2017.
N.A. MATHEKA
JUDGE