[2017] KEELC 3134 (KLR)
The court found that the plaintiffs failed to serve the defendant despite being granted multiple opportunities, including leave to serve by substituted service. The plaintiffs and their advocate repeatedly failed to attend court and did not provide evidence of service. In the absence of service and attendance, the...
Source-derived case information.
- Citation
- [2017] KEELC 3134 (KLR)
- Parties
- Plaintiff: Francis Kiraithe Kitharia; Plaintiff: Eric Mawira Njagi; Plaintiff: Mwiti Njagi; Defendant: Geofrey Mugambi Njagi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 19 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Service and Dismissal
- Outcome
- suit dismissed for want of prosecution and non-service; no order as to costs
- Judges
- FM Njoroge
- Legal Topics
- Service of Process, Dismissal for Non Service, Inherent Jurisdiction, Pre Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kiraithe Kitharia
Plaintiff
Eric Mawira Njagi
Plaintiff
Mwiti Njagi
Plaintiff
Geofrey Mugambi Njagi
Defendant
Procedural Posture
Land and Property Suit / Ruling on Service and Dismissal
Legal Issues
- 1 Whether the plaintiffs served the defendant as required by law.
- 2 Whether the suit should be dismissed for failure to serve the defendant and non-attendance by the plaintiffs.
- 3 Whether the court should invoke its inherent powers under section 3A of the Civil Procedure Act.
Ratio Decidendi
The court found that the plaintiffs failed to serve the defendant despite being granted multiple opportunities, including leave to serve by substituted service. The plaintiffs and their advocate repeatedly failed to attend court and did not provide evidence of service. In the absence of service and attendance, the court could not proceed to a pre-trial conference or further steps. To uphold the integrity of the judicial process and in exercise of its inherent powers under section 3A of the Civil Procedure Act, as well as to give effect to the provisions of Order 11 of the Civil Procedure Rules, the court dismissed the suit for want of prosecution and failure to serve the defendant.
Court Disposition
suit dismissed for want of prosecution and non-service; no order as to costs
Orders
- The suit is dismissed.
- No costs are awarded.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 19 OF 2017
FORMERLY MERU ELC CASE NO.65 OF 2016
FRANCIS KIRAITHE KITHARIA ………………...…………..1ST PLAINTIFF
ERIC MAWIRA NJAGI………………………….……………2ND PLAINTIFF
MWITI NJAGI………………………………………………....3RD PLAINTIFF
VERSUS
GEOFREY MUGAMBI NJAGI………………..….....…………….DEFENDANT
RULING
1. On 21. 5.2016 the plaintiff, exparte, obtained an order of inhibition.
2. Since 21. 5.2016, the plaintiff has never served the defendant. The matter was mentioned on 15. 6.2016 but both parties were not in court.
3. On 7. 11. 2016, Mr. D.J. Mbaya told the court that he had been unable to serve the defendant. He asked the court to mention the matter on 15. 12. 2016.
4. On 15. 12. 2016 the parties did not come to court.
5. On 8. 2.2016, Mr. Mbaya asked the court to grant him 30 days to serve the defendant by way of substituted service. He was granted 30 days to do so.
6. On 14. 3.2017, Mr. D. J. Mbaya and his client did not come to court. There was no evidence in the court record that he had served the defendant by way of substituted service.
7. On 14. 3.2017, the court had envisaged that it would hold a pre-trial conference. With the plaintiff and his advocate not being in court, and without evidence that the defendant had been served, this could not be done.
8. For ends of Justice to be met, I find it necessary to invoke the court’s inherent power to make orders as it may be necessary in terms of section 3A of the Civil Procedure Act and to uphold the spirit of the provisions of Order 11 of the Civil Procedure Rules.
9. I dismiss this suit.
10. No costs are awarded.
11. It is so ordered
Delivered in open court at Chuka this 14th day of March, 2017 in the presence of:
CA: Ndegwa
Parties absent
P. M. NJOROGE
JUDGE