[2018] KEELC 347 (KLR)
The court found that the delay in prosecuting the suit was not attributable to the Plaintiff, as the Plaintiff had closed her case in 2011 and the subsequent adjournment was at the Defendant's request. Furthermore, the absence of an Environment and Land Court Judge in Machakos between 2012 and 2014 made it...
Source-derived case information.
- Citation
- [2018] KEELC 347 (KLR)
- Parties
- Plaintiff: Florence Kathambi Mutiso; Defendant: Mercy Njamwea
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 100 of 2003
- Procedural Posture
- Notice of Motion / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court Jurisdiction, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Kathambi Mutiso
Plaintiff
Mercy Njamwea
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay by the Plaintiff.
- 2 Whether the absence of an Environment and Land Court Judge in Machakos justified the delay in prosecuting the suit.
- 3 Whether the obligation to fix the matter for Defence hearing shifted to the Defendant after the Plaintiff closed her case.
Ratio Decidendi
The court found that the delay in prosecuting the suit was not attributable to the Plaintiff, as the Plaintiff had closed her case in 2011 and the subsequent adjournment was at the Defendant's request. Furthermore, the absence of an Environment and Land Court Judge in Machakos between 2012 and 2014 made it impossible to fix the matter for hearing. The obligation to set the Defence hearing date had shifted to the Defendant after the Plaintiff closed her case. Therefore, the Defendant could not claim that the Plaintiff was responsible for the delay. The court concluded that the application to dismiss the suit for want of prosecution was without merit and dismissed it with costs to the...
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The Notice of Motion dated 27th November, 2014 is dismissed.
- Costs of the application are awarded to the Plaintiff.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 100 OF 2003
FLORENCE KATHAMBI MUTISO...............................PLAINTIFF
VERSUS
MERCY NJAMWEA .....................................................DEFENDANT
RULING
1. In the Notice of Motion dated 27th November, 2014, the Defendant is seeking for the following orders:
a. That this suit be dismissed for want of prosecution.
b. That the cost of this Application and of the suit be awarded to the Defendant.
2. The Application is premised on the grounds that the Defence came up for hearing on 23rd November, 2011; that the matter was adjourned to allow for the typing of the proceedings; that it has been over two (2) years since the Plaintiff prosecuted the suit and that it is apparent that the Plaintiff has lost interest in the suit.
3. In his Replying Affidavit, the Plaintiff’s advocate deponed that the Plaintiff’s suit was heard and closed on 13th July, 2011; that the suit was adjourned on 23rd November, 2011 at the instance of the Defendant and that when the matter was mentioned on 3rd February, 2012 to confirm if the proceedings had been typed, the Defendant’s counsel did not turn up.
4. It is the Plaintiff’s advocate’s deposition that by way of a letter dated 20th July, 2012, the Defendant’s advocate alleged that the court file was missing and that the delay in prosecuting the suit was caused by the Defendant.
5. The Plaintiff’s advocate deponed that in any event, the High Court in Machakos did not have an Environment and Land Court Judge and all the land matters pending in the court were kept in abeyance until late 2014 when the Environment and Land Court was established.
6. The Defendant’s and the Plaintiff’s advocates filed their respective submissions which I have considered. I have also considered the filed authorities.
7. The record shows that the Plaintiff commenced her suit on 7th March, 2007 when her evidence was taken. However, it was not until 13th July, 2011 when the evidence of PW2 was taken. On the same day, the Plaintiff closed her case. The court then fixed the matter for Defence hearing for 23rd November, 2011. On the said date, the Defence applied, which Application was allowed, for the adjournment of the matter.
8. When the matter was mentioned on 3rd February, 2012, the court was informed that the proceedings had not been typed. The matter was never mentioned again until when this Application was filed in the year 2014.
9. It is trite that when the Environment and Land Court (ELC) was established and operationalized in October, 2012, none of the Judges in the court were posted in Machakos. Indeed, it was not until the year 2017 that a judge was posted in the court. It is therefore obvious that the Plaintiff cannot be faulted for having not fixed the matter for hearing between the year 2012 and 2014 because there was no ELC Judge in the station.
10. In any event, the Plaintiff having closed her case in the year 2011, the obligation to fix the matter for Defence hearing shifted to the Defendant. Consequently, the Defendant cannot claim that it is the Plaintiff who has delayed in prosecuting the claim. Indeed, the filing of the current Application has gone a long way in delaying the prosecution of this matter.
11. For those reasons, I dismiss the Application dated 27th November, 2014 with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 10TH DAY OF DECEMBER, 2018.
O.A. ANGOTE
JUDGE