[2019] KEELC 2498 (KLR)
The court held that the plaintiff failed to take any steps to prosecute the suit for over four years and did not attend the hearing of the Notice to Show Cause, despite his advocate being duly served. The court emphasized that it is the litigant's responsibility to follow up on their case, and any negligence by the...
Source-derived case information.
- Citation
- [2019] KEELC 2498 (KLR)
- Parties
- Applicant: Gideon Kiilu Ndolo; Respondent: Peter Kyule; Respondent: Jason Mwanzia; Respondent: Anna Mwikali Mwau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 2 of 2014
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Advocate Negligence, Duty of Litigant
- 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
Gideon Kiilu Ndolo
Applicant
Peter Kyule
Respondent
Jason Mwanzia
Respondent
Anna Mwikali Mwau
Respondent
Procedural Posture
Miscellaneous Application / 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 and the suit reinstated.
- 2 Whether the plaintiff's lack of awareness of the Notice to Show Cause or issues with his advocate constitute sufficient reason to reinstate the suit.
Ratio Decidendi
The court held that the plaintiff failed to take any steps to prosecute the suit for over four years and did not attend the hearing of the Notice to Show Cause, despite his advocate being duly served. The court emphasized that it is the litigant's responsibility to follow up on their case, and any negligence by the advocate does not excuse the plaintiff's inaction. The court found no sufficient reason to set aside the dismissal order, as the plaintiff's explanations were inadequate and did not demonstrate diligence or reasonable cause for the delay. Consequently, the application to reinstate the suit was dismissed, and the original dismissal for want of prosecution was upheld.
Court Disposition
application dismissed
Orders
- The application dated 15th January, 2019 is dismissed with no order as to costs.
- The suit stands dismissed for want of prosecution as ordered on 13th April, 2018.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO.2 OF 2014
GIDEON KIILU NDOLO..............................................PLAINTIFF/APPLICANT
VERSUS
PETER KYULE................................................1ST DEFENDANT/RESPONDENT
JASON MWANZIA..........................................2ND DEFENDANT/RESPONDENT
ANNA MWIKALI MWAU..............................3RD DEFENDANT/RESPONDENT
RULING
1. This matter was dismissed by the court on its own Motion on 13th April, 2018 for want of prosecution. The Plaintiff has now filed an Application dated 15th January, 2019 in which he is seeking for the following orders:
a. That the court be pleased to set aside the order made on 13th April, 2018 dismissing this suit for want of prosecution and reinstate the suit to be heard and determined on its merits.
b. The costs of this Application be in the cause.
2. The Application is premised on the ground that the Plaintiff was not aware of the Notice to Show Cause that came up on 13th April, 2018; that the Plaintiff stands to lose his property if the court order remains and that the delay in prosecuting the suit was caused by failure by the Plaintiff to get a suitable advocate to represent him.
3. In his Affidavit, the Plaintiff deponed that he instructed the firm of A.M. Mbindyo & Company advocates to represent him on 21st December, 2015; that he thereafter differed with his advocate whereupon he instructed the current firm of advocates to represent him and that because the court file could not be traced, the firm of Mulwa Isika & Mutia advocates were unable to file their Notice of Change of Advocates on 25th September, 2018.
4. The Plaintiff finally deponed that his former advocate did not inform him that he had received the Notice to Show Cause why the suit cannot be dismissed and that he will lose his land which was fraudulently taken away from him unless the current Application is allowed. The Respondent did not oppose the Application.
5. This suit was commenced by way of a Plaint dated 16th January, 2014. The record shows that the 2nd and 3rd Defendants entered appearance on 28th February, 2014 and filed a Defence on 14th March, 2014. The 1st Defendant entered appearance on 26th March, 2014 and filed his Defence on 31st March, 2014.
6. Since the filing of the suit in the year 2014, the Plaintiff never took any step to fix the matter for hearing or for pre-trial directions. It is for that reason that the Plaintiff’s then advocate, A.M. Mbindyo & Co. Advocates was served by this court with a Notice to Show Cause why the suit should not be dismissed for want of prosecution. The Plaintiff’s advocate duly received the Notice to Show Cause on 8th March, 2018.
7. However, when the Notice to Show Cause came up for hearing on 23rd March, 2018, neither the Plaintiff nor his advocate were in court to explain why the matter should not be dismissed for want of prosecution.
8. The Plaintiff’s then advocate has not denied that he was actually served with the Notice to Show Cause. Indeed, by the time the Plaintiff purported to instruct his current advocate, the suit had already been dismissed for want of prosecution.
9. The issue of the Plaintiff having fallen out with his former advocate cannot be a reason to set aside the order of this court dismissing the matter. It has always been the position of this court that it is the duty of a litigant to make a follow-up of a case that is filed in court on his behalf by an advocate. Where an advocate is negligent and takes unreasonably long to fix the matter for hearing, then the litigant will suffer the consequences if his matter is dismissed for want of prosecution. It will not matter that the advocate is to blame for the delay in prosecuting the matter.
10. The Plaintiff having not made a follow-up on the suit for more than four (4) years has himself to blame. In the circumstances, I dismiss the Application dated 15th January, 2019 with no order as to costs.
11. For avoidance of doubt, the suit stands dismissed for want of prosecution as ordered by the court on 13th April, 2018.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 5TH DAY OF JULY, 2019.
O.A. ANGOTE
JUDGE