[2019] KEELC 1142 (KLR)
The court found that the plaintiffs failed to provide a satisfactory explanation for the delay in prosecuting the suit between February 2015 and May 2017. The 2nd Plaintiff did not deny that the postal address used for service was his, nor did he explain why neither he nor the other plaintiffs took steps to progress...
Source-derived case information.
- Citation
- [2019] KEELC 1142 (KLR)
- Parties
- Plaintiff: Francis Ngungi Mutula; Plaintiff: Benjamin Mutua Muindi; Plaintiff: Benson Mutisya Mwivah; Plaintiff: Wetress Mutinda Kisyula; Defendant: Nason Ndetto Mitambo; Defendant: Joseph Mwangangi Kyulu; Defendant: Grace Pius Mitambo; Defendant: Bernard Mutungi Mitambo; Defendant: James Sikuku Mitambo; Defendant: Mbuva Munguta; Defendant: The Registrar of Titles (Machakos Lands Registry)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 27 of 2008
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed; suit remains dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Notice, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Ngungi Mutula
Plaintiff
Benjamin Mutua Muindi
Plaintiff
Benson Mutisya Mwivah
Plaintiff
Wetress Mutinda Kisyula
Plaintiff
Nason Ndetto Mitambo
Defendant
Joseph Mwangangi Kyulu
Defendant
Grace Pius Mitambo
Defendant
Bernard Mutungi Mitambo
Defendant
James Sikuku Mitambo
Defendant
Mbuva Munguta
Defendant
The Registrar of Titles (Machakos Lands Registry)
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the plaintiffs were properly served with the Notice to Show Cause.
- 3 Whether the plaintiffs provided sufficient explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the plaintiffs failed to provide a satisfactory explanation for the delay in prosecuting the suit between February 2015 and May 2017. The 2nd Plaintiff did not deny that the postal address used for service was his, nor did he explain why neither he nor the other plaintiffs took steps to progress the matter. The court was not persuaded that the alleged lack of service or the 1st Plaintiff's illness justified the prolonged inactivity. Consequently, the court declined to exercise its discretion to set aside the dismissal order, holding that the plaintiffs had not met the threshold for reinstatement of the suit.
Court Disposition
application dismissed; suit remains dismissed
Orders
- The application dated 20th May, 2019 is dismissed with no order for costs.
- The suit stands dismissed as ordered by the court on 23rd May, 2017.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 27 OF 2008
FRANCIS NGUNGI MUTULA...........................................................................1ST PLAINTIFF
BENJAMIN MUTUA MUINDI..........................................................................2ND PLAINTIFF
BENSON MUTISYA MWIVAH.........................................................................3RD PLAINTIFF
WETRESS MUTINDA KISYULA.....................................................................4TH PLAINTIFF
VERSUS
NASON NDETO MITAMBO...........................................................................1ST DEFENDANT
JOSEPH MWANGANGI KYULU..................................................................2ND DEFENDANT
GRACE PIUS MITAMBO...............................................................................3RD DEFENDANT
BERNARD MUTUNGI MITAMBO...............................................................4TH DEFENDANT
JAMES SIKUKU MITAMBO.........................................................................5TH DEFENDANT
MBUVA MUNGUTA........................................................................................6TH DEFENDANT
THE REGISTRAR OF TITLES (MACHAKOS LANDS REGISTRY)......7TH DEFENDANT
RULING
1. In the Notice of Motion dated 20th May, 2019, the Plaintiffs are seeking for the following orders:
a.That this Honourable Court be pleased to vacate and/or set aside the order made on the 23rd day of May, 2017 by which this suit was dismissed with costs for want of prosecution.
b.That this Honourable Court be pleased to reinstate this suit to be determined expeditiously on merit.
c.That the statutory period of 14 days stipulated for filing an Amended Plaint pursuant to leave granted on 24th June, 2013 be and is hereby extended by a period of fourteen (14) days.
d.That the costs of this Application be in the cause.
2. The Application is premised on the Affidavit of the 2nd Plaintiff who has deponed that the suit was filed on 27th July, 2007 with the 1st Plaintiff as the prime mover of the suit in his capacity as the senior patriarch of the extended family who was vested with ancestral interest in the suit properties.
3. According to the 2nd Plaintiff, upon obtaining leave to file the Amended Plaint on 4th February, 2015, the 1st Plaintiff fell ill, which infirmity was compounded by old age; that due to the said illness, communication between the 1st Plaintiff and his advocate was hampered and that in the intervening period, he learnt that the suit had been dismissed for want of prosecution.
4. The 2nd Plaintiff finally deponed that the Notice to Show Cause was neither served on the Plaintiffs nor their advocate on record and that the orders dismissing the suit for want of prosecution should be set aside.
5. The Defendants filed Grounds of Opposition in which they averred that there has been inordinate delay in both prosecuting the suit since 13th September, 2013 as well as filing the Amended Plaint; that the matter is res judicata pursuant to Uaani Civil Case No. 134 of 1973 and that even if the 1st Plaintiff was ill, any of the other Plaintiffs would have moved the court.
6. The Defendants finally averred that Dismissal Notices are always posted online many days before the dismissal day and that the Notice was duly served on the advocates.
7. The Notice to Show Cause why the suit should not be dismissed for want of prosecution under Order 17 Rule (2) of the Civil Procedure Rules dated 24th April, 2017 was addressed to the 1st Plaintiff and the Defendants’ advocate.
8. The record shows that when the Notice to Show Cause came up for hearing on 25th May, 2017, neither the Plaintiffs nor the Defendants were in court. The court proceeded to dismiss the suit for want of prosecution on the said date.
9. Although the 2nd Plaintiff has stated that he never received the Notice to Show Cause, he has not denied that the postal address indicated on the face of the Notice to Show Cause, that is, P.O. Box 290 Kikima is his. Furthermore, the 2nd Plaintiff has not informed the court why him, together with the other Plaintiffs, did not fix the matter for hearing between 4th February, 2015 when the matter was last in court and 25th May, 2017 when the matter was dismissed for want of prosecution.
10. Considering that the 1st Plaintiff was granted leave to enjoin the other Plaintiffs on 4th February, 2015 and never took steps to amend his Plaint accordingly, and in the absence of an explanation why the matter was never fixed for mention or hearing between 4th February, 2015 and 23rd May, 2017 when the suit was dismissed for want of prosecution, I decline to exercise my discretion in favour of the Plaintiffs.
11. The Application dated 20th May, 2019 is dismissed with no order for costs. For avoidance of doubt, the suit stands dismissed as ordered by the court on 23rd May, 2017.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 18TH DAY OF OCTOBER, 2019.
O.A. ANGOTE
JUDGE