[2017] KEELC 3047 (KLR)
The court found that the suit had already been dismissed by Hon. Justice Lenaola on 2nd June 2006, and therefore, it could not be dismissed a second time. The court further held that, even if the suit had not been previously dismissed, it had abated against the defendant under Order 24 of the Civil Procedure Rules...
Source-derived case information.
- Citation
- [2017] KEELC 3047 (KLR)
- Parties
- Plaintiff: Gilbert Kathenya Mukungi; Defendant: Mwiandi Kaimbiru; Interested Party: Evangeline Kanyua Mwiandi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 89 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Dismissal for Want of Prosecution
- Outcome
- suit stands dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Abatement of Suit, Order 17 Rule 2, Order 24 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilbert Kathenya Mukungi
Plaintiff
Mwiandi Kaimbiru
Defendant
Evangeline Kanyua Mwiandi
Interested Party
Procedural Posture
Land and Property Suit / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules.
- 2 Whether the suit had already been dismissed by a previous court order.
- 3 Whether the suit had abated against the defendant under Order 24 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the suit had already been dismissed by Hon. Justice Lenaola on 2nd June 2006, and therefore, it could not be dismissed a second time. The court further held that, even if the suit had not been previously dismissed, it had abated against the defendant under Order 24 of the Civil Procedure Rules due to failure to substitute the defendant. Consequently, the court confirmed that the suit stands dismissed and declined to make any further orders of dismissal for want of prosecution.
Court Disposition
suit stands dismissed
Orders
- The suit stands dismissed as previously ordered by the court.
- No further orders of dismissal are made.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 89 OF 2017
FORMERLY MERU ELC CASE NO.410 OF 1991
GILBERT KATHENYA MUKUNGI……………….….....PLAINTIFF
VERSUS
MWIANDI KAIMBIRU………………….……...........DEFENDANT
EVANGELINE KANYUA MWIANDI…........INTERESTED PARTY
RULING
1. Parties were to come to court on 8th March, 2017 to show cause why this suit should not be dismissed for want of prosecution in terms of order 17 rule 2 (1) of the Civil Procedure Rules.
2. The plaintiff was represented by advocate Mbaikiata. She told the court that the plaintiff had filed the suit in 1992. She said that the plaintiff was acting in person at that time. She said that the plaintiff went to their office and they had advised her that the defendant ought to be substituted.
3. I do note that this suit was dismissed by the Hon. Justice Lenaola, J, as he then was, on 2. 6.2006, 11 years ago.
4. The suit still stands dismissed and this court cannot dismiss it twice. It has no jurisdiction to do so.
5. Even assuming that the suit does not stand dismissed, it has pellucidly abated against the defendant in terms of the provisions of order 24 of the Civil Procedure Rules.
6. It is restated that the suit stands dismissed.
7. It is so ordered.
Delivered in open court at Chuka this 4th day of April, 2017 in the presence of:
CA: Ndegwa
Parties absent
P. M. NJOROGE,
JUDGE.