[2021] KEELC 750 (KLR)
The court found that the plaintiff had repeatedly failed to prosecute his applications and attend court despite being aware of the scheduled dates. The latest application to set aside the dismissal orders was viewed as an attempt to circumvent the notice to show cause proceedings rather than a genuine effort to...
Source-derived case information.
- Citation
- [2021] KEELC 750 (KLR)
- Parties
- Plaintiff: George Gikubu Mbuthia; Defendant: Mohammud Sheikh Hussein; Defendant: Chief Land Registrar; Defendant: Garam Investment Auctioneers; Defendant: Gulf African Bank Limited; Defendant: SAC(K) Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 41 of 2019
- Procedural Posture
- Land and Property Suit / Ruling on Notice to Show Cause for Dismissal
- Outcome
- application dismissed; directions issued for withdrawal or hearing
- Judges
- LN Mbugua
- Legal Topics
- Dismissal for Want of Prosecution, Notice to Show Cause, Withdrawal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Gikubu Mbuthia
Plaintiff
Mohammud Sheikh Hussein
Defendant
Chief Land Registrar
Defendant
Garam Investment Auctioneers
Defendant
Gulf African Bank Limited
Defendant
SAC(K) Limited
Defendant
Procedural Posture
Land and Property Suit / Ruling on Notice to Show Cause for Dismissal
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution following repeated non-attendance by the plaintiff.
- 2 Whether the plaintiff's application to set aside previous dismissal orders was filed in good faith or to circumvent the notice to show cause proceedings.
- 3 Whether the plaintiff should be granted an opportunity to withdraw the suit or proceed to hearing.
Ratio Decidendi
The court found that the plaintiff had repeatedly failed to prosecute his applications and attend court despite being aware of the scheduled dates. The latest application to set aside the dismissal orders was viewed as an attempt to circumvent the notice to show cause proceedings rather than a genuine effort to advance the case. However, given the plaintiff's earlier indication of intent to withdraw the suit, the court granted him a final opportunity to clarify his position: either to withdraw the suit or proceed to pre-trial and hearing without further interlocutory applications. The application dated 8.10.2021 was dismissed suo moto with no orders as to costs.
Court Disposition
application dismissed; directions issued for withdrawal or hearing
Orders
- The applicant is to state categorically whether he will withdraw the suit.
- If the suit is not withdrawn, it is to be set down for pre-trial and hearing forthwith with no further applications allowed in the interim.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO. 41 OF 2019
GEORGE GIKUBU MBUTHIA...................................................... PLAINTIFF
VERSUS
MOHAMMUD SHEIKH HUSSEIN.....................................1ST DEFENDANT
CHIEF LAND REGISTRAR...............................................2ND DEFENDANT
GARAM INVESTMENT AUCTIONEERS.......................3RD DEFENDANT
GULF AFRICAN BANK LIMITED...................................4TH DEFENDANT
SAC(K) LIMITED...............................................................5TH DEFENDANT
RULING
1. Coming up for determination is an issue of the Notice to Show Cause why this suit should not be dismissed. The background of this matter is that the suit was filed contemporaneously with an application dated 12. 2.2019 where the Plaintiff was seeking injunctive orders against the Defendants. The said application was dismissed on 13. 2.2020 for want of prosecution as the Plaintiff was absent yet the date had been set in his presence. Thereafter, the Plaintiff lodged another application dated 12. 3.2020 seeking the following orders; “ The 2nd Defendant is frustrating the enforcement of decree of conveyance, the Honourable court stay the pre-trial proceedings, in the alternative, mark the case as withdrawn and no orders as to costs”.This application too was dismissed for want of prosecution on 21. 7.21. It is again noted that the Applicant was aware of the aforementioned date.
2. The court had then proceeded to issue a notice to show cause on 21. 7.21 and the matter was then scheduled for 21. 10. 2021. Come the date of 21. 10. 2021 and the explanation offered by the Plaintiff is that he had filed another application. I have seen the latest application dated 8. 10. 2021 whereby the Plaintiff seeks orders to set aside the orders given on 21. 7.2021.
3. I am inclined to find that the application dated 8. 10. 2021 was filed to circumvent the Notice to show cause proceedings, otherwise why was the application not filed soon after the orders of 21. 7.2021 were given. However, noting that in the dismissed application dated 12. 3.2021, the Applicant had intended to withdraw the suit, the court will grant him audience in the following terms;
1) The applicant is to state categorically whether he will withdraw the suit.
2) If the answer to point 1) is not in the affirmative, then the suit is to be set down for both pre-trial and hearing forthwith and the court will not entertain any applications in the intervening period.
3) The application dated 8. 10. 2021 is suo moto dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF NOVEMBER, 2021 THROUGH MICROSOFT TEAMS.
LUCY N. MBUGUA
JUDGE
In the presence of:-
Gikumbu Mbuthia the Plaintiff/Applicant in person
Mwihaki for the 1st Defendant
Mr. Mwaboru holding brief for A. Kamau for the (2nd Defendant)
Court Assistant: Eddel Barasa