[2019] KEELC 904 (KLR)
The court found that the application for dismissal for want of prosecution was premature because less than one year had lapsed since the last step in the proceedings. The last action in the matter was on 3 December 2018, when the court gave directions for compliance with Order 11, and the application for dismissal...
Source-derived case information.
- Citation
- [2019] KEELC 904 (KLR)
- Parties
- Plaintiff: Haiderali Popat Teja; Defendant: Festus Charo Gona & Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 62 of 2013
- Procedural Posture
- Application for Dismissal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs
- Legal Topics
- Dismissal for Want of Prosecution, Order 17 Rule 2, Vacant Possession, Adverse Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Haiderali Popat Teja
Plaintiff
Festus Charo Gona & Others
Defendant
Procedural Posture
Application for Dismissal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether one year had lapsed since the last step in the proceedings before the application for dismissal was filed.
Ratio Decidendi
The court found that the application for dismissal for want of prosecution was premature because less than one year had lapsed since the last step in the proceedings. The last action in the matter was on 3 December 2018, when the court gave directions for compliance with Order 11, and the application for dismissal was filed on 11 June 2019. Order 17 Rule 2 of the Civil Procedure Rules requires that at least one year must lapse from the last step taken in the suit before such an application can be entertained. As this requirement was not met, the court held that the application had no merit and dismissed it with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 15 May 2019 for dismissal of the suit for want of prosecution is dismissed with costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MOMBASA
ELC NO. 62 OF 2013
HAIDERALI POPAT TEJA..................................................PLAINTIFF
VERSUS
FESTUS CHARO GONA & OTHERS...........................DEFENDANTS
RULING
(Application for dismissal of suit for want of prosecution; one year not having lapsed from the date of the last action; Order 17 Rule 2 requiring that one year must lapse; application dismissed)
1. The application before me is that dated 15 May 2019 which seeks to have the plaintiff’s suit dismissed for want of prosecution. The suit before me is consolidated with the suit Mombasa HCCC No. 109 of 2013 (OS). In this suit, the plaintiff sued the defendants for vacant possession of the land Plot Number MN/II/380 whereas in the suit Mombasa HCCC No. 109 of 2013, several persons have claimed the same land by way of adverse possession. The supporting affidavit to this application has been sworn by one Festus Charo Gona, one of the applicants in the suit for adverse possession. As mentioned, the application seeks the dismissal of this suit for want of prosecution.
2. Order 17 Rule 2 applies and the same is drawn as follows :-
2 (1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
(4) The court may dismiss the suit for non-compliance with any direction given under this Order.
3. It will be noted that for this court to dismiss a suit for want of prosecution, it must be satisfied that at least one year had lapsed from the time the last step in the suit was made, to the time of filing the application.
4. I have perused the record and from the same, I note that the last time the matter was in court was on 3 December 2018 when the court gave directions for parties to comply with Order 11. This application was filed on 11 June 2019, before the lapse of one year and thus cannot be entertained.
5. I do not see the need of saying more.
6. This application is has no merit and is hereby dismissed with costs.
7. Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA this 6th day of November 2019.
..............................
MUNYAO SILA,
JUDGE.
IN THE PRESENCE OF:
Mr. Amadi for the respondent.
No appearance on the part of M/s A. I Hayanga & Associates for the applicants.
Court assistant ; David Koitamet.