[2021] KEELC 4477 (KLR)
The court found that the reasons advanced by the applicant's advocate for the delay in prosecuting the suit were not plausible or satisfactory. The record showed that this was the second attempt by the plaintiff to reinstate the suit after dismissal for want of prosecution, indicating a lack of seriousness and...
Source-derived case information.
- Citation
- [2021] KEELC 4477 (KLR)
- Parties
- Applicant: General H. W. Njoroge; Respondent: William Njoroge Mbote
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 52 of 2015
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Exercise of Discretion, Land Disputes
- 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
General H. W. Njoroge
Applicant
William Njoroge Mbote
Respondent
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the court should set aside the order dismissing the plaintiff's suit for want of prosecution.
- 2 Whether the plaintiff's suit should be reinstated.
Ratio Decidendi
The court found that the reasons advanced by the applicant's advocate for the delay in prosecuting the suit were not plausible or satisfactory. The record showed that this was the second attempt by the plaintiff to reinstate the suit after dismissal for want of prosecution, indicating a lack of seriousness and diligence in pursuing the matter. The court was not satisfied that sufficient cause had been shown to warrant the exercise of its discretion in favour of the applicant. Consequently, the application to set aside the dismissal and reinstate the suit was found to be without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application to set aside the order of 9th December 2019 dismissing the suit for want of prosecution is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 52 OF 2015
GENERAL H. W. NJOROGE....................................PLAINTIFF/APPLICANT
=VERSUS=
WILLIAM NJOROGE MBOTE.........................DEFENDANT/RESPONDENT
RULING
1. This is the notice of motion dated 16th December 2019 brought under section 3 and 3A of the Civil Procedure Act Cap 21 of the Laws of Kenya, order 51 rule 15 and any other enabling provisions of the law.
2. It seeks orders:-
(i) Spent.
(ii) That this honourable court be pleased to set aside the order of 9th December, 2019 dismissing the plaintiff suit for want of prosecution.
(iii) That this honourable court be pleased to reinstate the plaintiff’s suit.
(iv) That costs be in the cause.
3. The grounds are on the face of the application and are set out in paragraphs (a) to (i).
4. The application is supported by the affidavit of Kenneth Wilson, Advocate of the plaintiff/applicant sworn on the 16th December 2019.
5. The application is opposed. There is a replying affidavit sworn by Mwaniki Njuguna, Advocate of the defendant sworn on the 27th December 2020.
6. The application was canvassed by way of oral submissions.
7. I have considered the notice of motion, the affidavit in support and the annexures. I have also considered the replying affidavit, the annexures and the oral submissions by counsel. The issue for determination is whether this application is merited.
8. I have considered the reasons given by Mr. Kenneth Wilson Advocate, in his supporting affidavit. I am not convinced that they are plausible.
9. The court record is very clear. This is the second time the plaintiff is seeking to reinstate the suit after it was dismissed for want of prosecution. I find that the plaintiff is not desirous of prosecuting this case.
10. I am not satisfied by the reasons given by Mr. Kenneth Wilson Advocate. I find no merit in this application and the same is dismissed. I make no orders as to costs.
It is so ordered.
Dated, signed and delivered in Nairobi on this 28th day of January 2021.
.................................
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Kenneth Wilson for Plaintiff
Mr. Mwaniki Njuguna for Defendant
Phyllis - Court Assistant