[2017] KEELC 967 (KLR)
The court found that the plaintiff failed to comply with the explicit order issued on 2.10.2017, which gave a final chance to serve all suit papers and the application on all defendants by 30.10.2017. There was no evidence of service on several defendants by the deadline, and the plaintiff's explanations were...
Source-derived case information.
- Citation
- [2017] KEELC 967 (KLR)
- Parties
- Plaintiff: Francis Murungi M’Ibaya; Defendant: Festus Kaberia M’Anampiu; Defendant: Mutiga Michuki; Defendant: Julius Marete; Defendant: Virginia Kaari; Defendant: Gervasio Mitheo; Defendant: Simon Kamundi Larama; Defendant: Joseph Mwimbi; Defendant: The Land Adjudication Officer Tigania East/West Districts; Defendant: The Honourable Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 131 of 2012
- Procedural Posture
- Land and Environment Case / Ruling on Compliance With Service Orders and Dismissal
- Outcome
- Suit and application dismissed for non-compliance with service order.
- Legal Topics
- Service of Process, Dismissal for Non Compliance, Land Adjudication, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Murungi M’Ibaya
Plaintiff
Festus Kaberia M’Anampiu
Defendant
Mutiga Michuki
Defendant
Julius Marete
Defendant
Virginia Kaari
Defendant
Gervasio Mitheo
Defendant
Simon Kamundi Larama
Defendant
Joseph Mwimbi
Defendant
The Land Adjudication Officer Tigania East/West Districts
Defendant
The Honourable Attorney General
Defendant
Procedural Posture
Land and Environment Case / Ruling on Compliance With Service Orders and Dismissal
Legal Issues
- 1 Whether the plaintiff complied with the court's order to serve all suit papers and the application on all defendants by the stipulated date.
- 2 Whether the suit and the application should stand dismissed for failure to comply with the court's service order.
Ratio Decidendi
The court found that the plaintiff failed to comply with the explicit order issued on 2.10.2017, which gave a final chance to serve all suit papers and the application on all defendants by 30.10.2017. There was no evidence of service on several defendants by the deadline, and the plaintiff's explanations were insufficient. The court emphasized that the order was clear and put the plaintiff on notice that non-compliance would result in dismissal. As there was no compliance and no evidence of service, the court held that there was no suit before it to extend or revive. Consequently, both the suit and the application stood dismissed for want of service and non-compliance with the court's order.
Court Disposition
Suit and application dismissed for non-compliance with service order.
Orders
- The suit and the application of 21.6.16 stand as dismissed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 131 OF 2012
FRANCIS MURUNGI M’IBAYA...............................................PLAINTIFF
VERSUS
FESTUS KABERIA M’ANAMPIU.................................1ST DEFENDANT
MUTIGA MICHUKI……............................................…2ND DEFENDANT
JULIUS MARETE…………..……................................3RD DEFENDANT
VIRGINIA KAARI…………......…………………......…4TH DEFENDANT
GERVASIO MITHEO……………......……..............…..5TH DEFENDANT
SIMON KAMUNDI LARAMA…...……………….....….6TH DEFENDANT
JOSEPH MWIMBI……....…………………...……...…7TH DEFENDANT
THE LAND ADJUDICATION OFFICER
TIGANIA EAST/WEST DISTRICTS…………………..8TH DEFENDANT
THE HONOURABLE ATTORNEY GENERAL……......9TH DEFENDANT
RULING
The orders of the Court given on 2. 10. 17 read as follows:-
“The plaintiff’s side is given a FINAL CHANCE to serve all the suit papers and the application of 21. 6.16 to all the defendants, failure to which the suit and the application will stand as dismissed by the next Court date.”
The next Court date was 30. 10. 17. The plaintiff’s counsel averred that they had not served a 7th defendant because their amended plaint was only filed on 27. 10. 17. It was also averred that, service had been effected upon 1st, 4th, 6th, 8th and 9th defendants but there was an oversight in filing the affidavit of service.
Plaintiff’s side wanted more time to effect service.
The 2nd / 5th defendant’s advocate opposed this move averring that they were only served with an amended plaint yet, the plaintiff’s application of 8. 12. 14 (to have the plaint amended) had been abandoned.
The 3rd defendant associated himself with the sentiments advanced by the 2nd and the 5rd defendants.
I find that this suit is still at the infancy stage despite the fact that it is more than five years old. Why so? Because of want of service of the suit papers and application of 21. 6.16.
The wording of the Court order of 2. 10. 17 is crafted in a manner that puts the plaintiff on notice. The suit stood as dismissed in the event that there was no compliance with the courts orders of 2. 10. 2017 regarding service upon all concerned parties as at 30:10:17.
It came to be that by 30. 10. 17, there was no evidence of service upon 1st, 4th, 6th, 7th, 8th and 9th defendants. It follows that there are no orders to extend as there is no suit.
The suit and the application of 21. 6.16 stand as dismissed.
DELIVERED, DATED AND SIGNED AT MERU THIS 15TH DAY OF NOVEMBER, 2017 IN THE PRESENCE OF:-
CA:Janet/Haway
Mutinda H/B for Ngunjiri for 2nd and 5th defendants present
Njenga H/B for Ndubi for Plaintiff present.
Hon. L. N. MBUGUA
ELC JUDGE