[2018] KEELC 1897 (KLR)
The court found that the plaintiff and his advocate had failed to take necessary steps to prosecute the suit since its filing in 2012, including failing to substitute the deceased plaintiff within the time granted and failing to attend court for directions. The court emphasized its duty to ensure the overriding...
Source-derived case information.
- Citation
- [2018] KEELC 1897 (KLR)
- Parties
- Plaintiff: Henry Kioji Ndaithu; Defendant: Makembo Magane; Defendant: Mugao M’Muchege
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 169 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Permanent Injunction, Substitution of Deceased Party, Interlocutory Judgment, Court Inherent Power
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Kioji Ndaithu
Plaintiff
Makembo Magane
Defendant
Mugao M’Muchege
Defendant
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 due to inaction by the plaintiff and his advocate.
- 2 Whether the interlocutory judgment previously entered was valid given the nature of the claim.
- 3 Whether the plaintiff's advocate complied with court directions regarding substitution and service.
Ratio Decidendi
The court found that the plaintiff and his advocate had failed to take necessary steps to prosecute the suit since its filing in 2012, including failing to substitute the deceased plaintiff within the time granted and failing to attend court for directions. The court emphasized its duty to ensure the overriding objective of the Civil Procedure Act and the Environment and Land Court Act, which require just, expeditious, and affordable resolution of disputes. The court also noted that justice delayed is justice denied, and that it cannot condone disregard of its orders by parties or their advocates. Given the prolonged inaction and lack of interest demonstrated by the plaintiff and his...
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is hereby dismissed for want of prosecution.
- No order as to costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 169 OF 2017
FORMERLY MERU ELC CASE NO.176 OF 2012
HENRY KIOJI NDAITHU..................PLAINTIFF
VERSUS
MAKEMBO MAGANE...........1ST DEFENDANT
MUGAO M’MUCHEGE.........2ND DEFENDANT
RULING
1. This matter was coming for directions on 25th September, 2018. This date was fixed at the instance of Miss Kiome, the plaintiff’s advocate. However on 25th September, 2018, the plaintiff’s advocate did not come to court. The plaintiff was also not in court.
2. Upon perusal of the apposite file, it is pellucid that the parties in this matter have not been interested in having the suit heard and determined expeditiously. This suit was filed in 2012.
3. I note that at one time, per incurium, the plaintiff had obtained an interlocutory Judgment. To put matters into perspective, I reproduce herebelow my ruling dated 14th day of November, 2017 concerning this matter.
RULING
1. Mr. Ondari informed me this morning that the plaintiff had passed on. Mr. Mwiti needs time to have him substituted.
2. I do note that on 26. 5.2016, the court fixed 25. 8.2016 as the date for formal proof proceedings. However, the next time the plaintiff’s advocate was in court was on 27. 7.2017, over one year later.
3. I have perused the plaint. The plaintiff’s plaint dated 23rd November, 2012 has only a prayer for permanent injunction. It contains no pecuniary claim. The interlocutory judgment entered by the Deputy Registrar, dated 13. 5.2013, is therefore wrongly entered. It is therefore dismissed and expunged from the court records.
4. The plaintiff’s advocate is granted 45 days to substitute the deceased plaintiff.
5. The plaintiff’s advocate is directed to properly serve upon the defendants with the next date for directions.
6. Parties will take directions on 29. 1.2018.
7. It is so ordered.
Delivered in open court at Chuka this 14th day of November, 2017 in the presence of:
CA: Ndegwa
Ondari h/b Mwiti for the Plaintiff
P.M. NJOROGE
JUDGE
4. Justice delayed is justice denied. On 30th April, 2018, Miss Kiome, the plaintiff’s advocate, asked for 3 months to sort out issues concerning her prosecution of this matter. This court granted that request. She also asked the court to give directions on 25th September, 2018.
5. Miss Kiome, the plaintiff’s advocate, has confirmed that she cannot trace her client.
6. This court cannot close its eyes when its orders are disregarded by advocates and their clients. The overriding objective of the Civil Procedure Act and of the Environment and Land Court Act is to facilitate the just, expeditious, proportionate and affordable resolution of disputes. This court has inherent power to ensure that the overriding objective is achieved. Article 159(2) of the Constitution of Kenya is pellucid that: “Justice shall not be delayed”. The ELC Practice Directions empower the court to give orders as the end of justice may require.
7. Having taken the totality of all circumstances surrounding the manner in which the prosecution of this case by the parties has been handled, I find that this suit merits dismissal.
8. In the circumstances, this suit is hereby dismissed.
9. I issue no order as to costs.
10. It is so ordered.
Delivered in open court at Chuka this 26th day of September, 2018 in the presence of:
CA: Ndegwa
Parties absent
P.M. NJOROGE
JUDGE