[2017] KEELC 677 (KLR)
The court declined to allow the 2nd defendant's application to declare the temporary injunction lapsed and to dismiss the suit for want of prosecution because there was no evidence that the plaintiffs or their counsel had been served with the application and the hearing notice for the date the application was to be...
Source-derived case information.
- Citation
- [2017] KEELC 677 (KLR)
- Parties
- Plaintiff: Eunice Mutitu Gichobi; Plaintiff: Jesinta Wanjiku Gichobi; Plaintiff: Julius Kariuki Gichobi; Plaintiff: Lucy Muthoni Gichobi; Plaintiff: Catherine Wambui Gichobi; Plaintiff: John Ngure Gichobi; Plaintiff: Stephen Gitari Gichobi; Defendant: Joseph Gichobi Ngure; Defendant: Stephen Ngumu Weru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 23 of 2016
- Procedural Posture
- Environment and Land Case / Ruling on Application to Declare Injunction Lapsed and Dismiss Suit for Want of Prosecution
- Outcome
- Application declined; directions given for proper service and fresh hearing date.
- Judges
- BN Olao
- Legal Topics
- Dismissal for Want of Prosecution, Service of Process, Temporary Injunctions, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Mutitu Gichobi
Plaintiff
Jesinta Wanjiku Gichobi
Plaintiff
Julius Kariuki Gichobi
Plaintiff
Lucy Muthoni Gichobi
Plaintiff
Catherine Wambui Gichobi
Plaintiff
John Ngure Gichobi
Plaintiff
Stephen Gitari Gichobi
Plaintiff
Joseph Gichobi Ngure
Defendant
Stephen Ngumu Weru
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Declare Injunction Lapsed and Dismiss Suit for Want of Prosecution
Legal Issues
- 1 Whether the temporary injunction granted on 25th February 2016 had lapsed by operation of law due to inactivity for over twelve months.
- 2 Whether the suit should be dismissed for want of prosecution.
- 3 Whether the application could be allowed in the absence of evidence of service on the plaintiffs.
Ratio Decidendi
The court declined to allow the 2nd defendant's application to declare the temporary injunction lapsed and to dismiss the suit for want of prosecution because there was no evidence that the plaintiffs or their counsel had been served with the application and the hearing notice for the date the application was to be heard. The court held that it would be unfair to grant the orders sought in the absence of the plaintiffs, who were entitled to be served and to respond. The court therefore directed that the application be served for hearing on a future date, upholding the principles of fair hearing and due process.
Court Disposition
Application declined; directions given for proper service and fresh hearing date.
Orders
- The application by the 2nd defendant is declined for want of evidence of service on the plaintiffs.
- The application to be served for hearing on 9th November 2017.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC CASE NO. 23 OF 2016
EUNICE MUTITU GICHOBI........................1ST PLAINTIFF
JESINTA WANJIKU GICHOBI..................2ND PLAINTIFF
JULIUS KARIUKI GICHOBI......................3RD PLAINTIFF
LUCY MUTHONI GICHOBI........................4TH PLAINTIFF
CATHERINE WAMBUI GICHOBI...............5TH PLAINTIFF
JOHN NGURE GICHOBI.............................6TH PLAINTIFF
STEPHEN GITARI GICHOBI.......................7TH PLAINTIFF
VERSUS
JOSEPH GICHOBI NGURE...................1ST DEFENDANT
STEPHEN NGUMU WERU....................2ND DEFENDANT
RULING
On 25th February 2016, the Court granted the plaintiffs interim orders in terms of prayers 1, 2 and 3 of the Notice of Motion dated 22nd February 2016. The application was then fixed for hearing inter-parte on 15th March 2016.
On 15th March 2016, counsel for the plaintiffs MR. MWAI did not attend Court and the application was adjourned to 21st April 2016 when MR. MWAI informed the Court that he was of the view that the parties should just prepare the main suit for hearing. The Court granted the parties upto 24th August 2016 to agree on the way forward but nothing appears to have happened on that day.
I now have an application by the 2nd defendant dated 8th June 2017 seeking the following orders:
1. That the Honourable Court be pleased to declare the temporary injunction granted on 25th February 2016 as having lapsed by operation of the law as no steps have been taken for over twelve months.
2. That the Honourable Court be pleased to dismiss the suit for want of prosecution.
3. That costs of the application be provided for.
The application is premised on the grounds set out therein and is also supported by the affidavit of STEPHEN NGUMU WERU the 2nd defendant herein.
The gravamen of the application is that since 25th February 2016 when this Court granted the plaintiffs an order of temporary injunction, no action has been taken to expedite this case and the said order of temporary injunction has infact lapsed. The 2nd defendant has deponed further that the land subject of this suit i.e. BARAGWE/GUAMA/879 was the subject of CIVIL CASE No. 336 of 2013 involving him and the 1st defendant and he has a decree issued in his favour upon admission by the 1st defendant.
The record shows that MR. MWAI was served with the application and a hearing notice on 20th July 2017 showing that the application was listed for hearing on 18th September 2017.
On 18th September 2017, the Court did not sit and the 2nd defendant took another date for hearing of the application which was on 30th October 2017. However, there is no evidence that counsel for the 2nd defendant served counsel for the plaintiffs with the said application. In the circumstances, and notwithstanding the fact that no reply has been filed in response to the said application, it would be unfair to allow it in the absence of the plaintiffs who needed to be served with the same.
I therefore decline to allow the application and direct that it be served for hearing on 9th November 2017.
It is so ordered.
B.N. OLAO
JUDGE
3RD NOVEMBER, 2017
Ruling dated, delivered and signed in open Court this 3rd day of November 2017 at Kerugoya
2nd Defendant present
No appearances by other parties.
B.N. OLAO
JUDGE
3RD NOVEMBER, 2017