[2019] KEELC 69 (KLR)
The court found that the plaintiffs/respondents had failed to take any steps to prosecute the suit for over a year after the dismissal of their injunction application, and had not provided any explanation for the delay despite being given multiple opportunities. The court applied the test from Ivita v Kyumbu,...
Source-derived case information.
- Citation
- [2019] KEELC 69 (KLR)
- Parties
- Plaintiff: Felista Njeri & 2 Others; Defendant: Patrick Kaniaru Igiria & 2 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1100 of 2016
- Procedural Posture
- Notice of Motion / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the applicants
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Case Management, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Felista Njeri & 2 Others
Plaintiff
Patrick Kaniaru Igiria & 2 Others
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the delay in prosecuting the suit was inordinate and inexcusable as to warrant dismissal for want of prosecution.
- 2 Whether justice could still be done despite the delay if a reasonable explanation was provided.
Ratio Decidendi
The court found that the plaintiffs/respondents had failed to take any steps to prosecute the suit for over a year after the dismissal of their injunction application, and had not provided any explanation for the delay despite being given multiple opportunities. The court applied the test from Ivita v Kyumbu, determining that the delay was both prolonged and inexcusable, and that the plaintiffs had lost interest in the case. As no explanation was offered and the main prayer in the plaint had already been dismissed, the court exercised its discretion to dismiss the suit for want of prosecution with costs to the applicants.
Court Disposition
suit dismissed for want of prosecution with costs to the applicants
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the applicants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC NO. 1100 OF 2016
FELISTA NJERI & 2 OTHERS....................................................................PLAINTIFF
=VERSUS=
PATRICK KANIARU IGIRIA & 2 OTHERS..........................................DEFENDANT
RULING
1. The Defendants/Applicants filed a Notice of Motion dated 21st August 2018 in which they sought to have the Plaintiffs/Respondents suit dismissed for want of prosecution. The Applicants contend that the Respondents have not taken any step for over a year from 3rd August 2017 with a view to prosecuting their suit and as such, they have lost interest in the suit which should be dismissed.
2. The Respondents did not file any grounds of opposition or replying affidavit despite being given time to do so. When the application came up for hearing, the Respondents advocate was not in court. The application therefore proceeded ex-parte. The only issue for determination is whether there has been inordinate delay in prosecuting this suit as to have the same dismissed.
3. The suit herein was filed on 9th September 2016. The Respondents contemporaneously filed an application for injunction. The application for injunction was dismissed on 31st July 2017. Since then until 17th September 2018 when this application was filed, the Respondents had not taken any step to have the case prosecuted. The Respondents have never been bothered to have summons issued and served. The injunction which was dismissed was the main prayer in the plaint.
4. In the case of Ivita Vs Kyumbu (1984) KLR at page 442, Justice Chesoni (as he then was) aptly put the test to be applied in considering whether to dismiss a suit for want of prosecution or not as follows:-
“The test applied by the Courts in an application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if, it is whether justice can be done despite the delay. Thus even if the delay is prolonged if the court is satisfied with the Plaintiff’s excuse for the delay and that justice can still be done to the parties , the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time. It is a matter in the discretion of the Court”.
5. The Respondents were granted an opportunity to explain the delay by filing an affidavit in reply on 28th February 2019. Again on 15th May 2019, the Respondents were given another chance but they did not do so. When the application came up for hearing, the Respondents advocate did not appear. As matters stand, there is no explanation given for the delay in prosecuting this case. I find that this is a perfect case where the Respondents have lost interest in their own case. I therefore allow the application by the Applicants and proceed to dismiss this suit for want of prosecution with costs to the applicants.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 7thday of November 2019.
E.O.OBAGA
JUDGE
In the absence of;-
In the absence of parties who were aware of the date and time for delivery of Ruling.
Court Assistant: Hilda
E.O.OBAGA
JUDGE