[2017] KEELC 1265 (KLR)
The court found that the delay in prosecuting the suit was not attributable to the Plaintiffs but was due to the suspension of the Environment and Land Court operations at Machakos and the absence of a judge following the Court of Appeal's decision in Karisa Chengo & others vs. R (2015) eKLR, which clarified that...
Source-derived case information.
- Citation
- [2017] KEELC 1265 (KLR)
- Parties
- Plaintiff: Gregory Sembei Wambua; Plaintiff: Peter Ngenge Wambua; Defendant: George Muema Syengo; Defendant: Anjeline Mwende Njeru; Defendant: Equity Bank Limited; Defendant: District Land Registrar, Kitui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 114 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Court Jurisdiction, Delay in Prosecution, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gregory Sembei Wambua
Plaintiff
Peter Ngenge Wambua
Plaintiff
George Muema Syengo
Defendant
Anjeline Mwende Njeru
Defendant
Equity Bank Limited
Defendant
District Land Registrar, Kitui
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit against the 3rd Defendant should be dismissed for want of prosecution.
- 2 Whether the Plaintiffs are to blame for the delay in setting the suit down for hearing.
Ratio Decidendi
The court found that the delay in prosecuting the suit was not attributable to the Plaintiffs but was due to the suspension of the Environment and Land Court operations at Machakos and the absence of a judge following the Court of Appeal's decision in Karisa Chengo & others vs. R (2015) eKLR, which clarified that the High Court lacked jurisdiction over land matters. The Plaintiffs could not have fixed the matter for hearing in the absence of a judge, and therefore, the application to dismiss the suit for want of prosecution was unmeritorious and could not be sustained.
Court Disposition
application dismissed
Orders
- The Application dated 1st September, 2016 is dismissed with costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 114 OF 2014
GREGORY SEMBEI WAMBUA........................................1ST PLAINTIFF
PETER NGENGE WAMBUA...........................................2ND PLAINTIFF
VERSUS
GEORGE MUEMA SYENGO........................................1ST DEFENDANT
ANJELINE MWENDE NJERU.....................................2ND DEFENDANT
EQUITY BANK LIMITED..............................................3RD DEFENDANT
DISTRICT LAND REGISTRAR, KITUI........................4TH DEFENDANT
RULING
1. In the Application dated 1st September, 2016, the 3rd Defendant is seeking for the following orders:
a.That this suit against the 3rd Defendant be dismissed for want of prosecution.
b.That the costs of this Application be provided for.
2. The Application is premised on the grounds that since this suit was filed on 8th October, 2014, no effort has been made to set it down for hearing; that it is in the interest of justice that the orders being sought be granted and that the court has jurisdiction to grant the said orders.
3. In reply, the Plaintiffs’ advocate deponed that a few months after the Plaintiffs’ suit was filed, the operations of the Environment and Land Court at Machakos were suspended and that although the suit was scheduled for mention on 27th May, 2015, nothing happened on that day.
4. The counsels for both parties appeared before me and made brief oral submissions which I have considered. I have also considered the case of Mwangi S. Kimanyi vs. The Attorney General & Another (2014) eKLR.
5. The Plaint in this matter was filed on 8th October, 2014. However, it was not until 19th December, 2014 that the 1st and 2nd Defendants filed their Defence. The 3rd Defendant filed its Defence on 14th January, 2015.
6. This court is aware that all the matters in the Environment and Land Court, Machakos used to be handled by the High Court.
7. However, on 8th May, 2015, the Court of Appeal in Karisa Chengo & others vs. R (2015) eKLR held that the High Court had no jurisdiction to hear and determine land matters.
8. Consequently, all the land matters that had been filed could not be fixed for hearing, until January, 2017 when I was posted to this station.
9. Consequently, the Plaintiffs cannot be blamed for not having fixed the matter for hearing as from 8th August, 2015 for lack of a judge in the station.
10. In the circumstances, and considering that the 3rd Defendant filed its Defence on 14th January, 2015, a few months before the Karisa Chengo (supra) decision was made, I find that the Application dated 1st September, 2016 is unmeritorious.
11. The Application dated 1st September, 2016 is therefore dismissed with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF NOVEMBER, 2017.
O.A. ANGOTE
JUDGE