[2019] KEELC 966 (KLR)
The court found that more than one year had elapsed since the suit was last in court and no action had been taken by the plaintiff to prosecute the matter. The plaintiff failed to respond to the applications for dismissal, indicating a lack of interest in pursuing the suit. Applying Order 17 Rule 2 of the Civil...
Source-derived case information.
- Citation
- [2019] KEELC 966 (KLR)
- Parties
- Plaintiff: Husni Said Mbarak (Suing as a special owner on behalf of Patwant Singh); Defendant: Hasham Aki Adam; Defendant: 2nd Defendant; Defendant: 5th Defendant
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 105 of 2017
- Procedural Posture
- Land and Property Suit / Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Legal Topics
- Want of Prosecution, Dismissal of Suit, Injunctions, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Husni Said Mbarak (Suing as a special owner on behalf of Patwant Singh)
Plaintiff
Hasham Aki Adam
Defendant
2nd Defendant
Defendant
5th Defendant
Defendant
Procedural Posture
Land and Property Suit / 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 the plaintiff has demonstrated any interest or taken any steps to prosecute the suit.
Ratio Decidendi
The court found that more than one year had elapsed since the suit was last in court and no action had been taken by the plaintiff to prosecute the matter. The plaintiff failed to respond to the applications for dismissal, indicating a lack of interest in pursuing the suit. Applying Order 17 Rule 2 of the Civil Procedure Rules, the court held that the suit should be dismissed for want of prosecution. The 2nd and 5th defendants were awarded costs of the applications and the suit.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- The 2nd and 5th defendants are awarded the costs of the two applications and of the suit.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MOMBASA
ELC. NO. 105 OF 2017
HUSNI SAID MBARAK (Suing as a special owner on behalf of
PATWANT SINGH)..........................................................................PLAINTIFF
VERSUS
HASHAM AKI ADAM & 4 OTHERS.......................................DEFENDANTS
RULING
(Application for dismissal of suit for want of prosecution; no action taken for more than one year; no reply to the application for dismissal; clear that the plaintiff has lost interest in the matter; suit dismissed for want of prosecution)
1. The application before me is that dated 23 April 2019 filed by the 5th defendant. The application seeks orders that this suit be dismissed for want of prosecution. There is also a similar application on record filed by the 2nd defendant. No response has been filed to both applications.
2. I have perused the record and noted that this suit was commenced through a plaint which was filed on 30 March 2017. The plaintiff has pleaded that he is “the special owner as caretaker and occupier” of the Plot MSA/MS/Block I/420 situated in Likoni and registered in the name of Patwant Singh. He has pleaded that on 20 March 2017, the defendants unlawfully invaded the suit land, took possession and started constructing thereon. In the suit, he asked for orders of injunction against the defendants.
3. The 2nd and 5th defendants filed defence and put the plaintiff to strict proof.
4. The matter came up before court on 9 November 2017 for an application for injunction which was filed together with the suit, and on that day counsel for the plaintiff sought to have the matter stood over generally to allow him amend the plaint. The case was then stood over generally. From that day, no step has been taken by the plaintiff to move the matter.
5. Order 17 Rule 2 applies in applications of this nature and it provides 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.
6. It is clear that more than one year has lapsed from the time the suit was stood over generally to the time the two applications were filed. The plaintiff has not responded to the applications which demonstrates that he no longer has any interest in the suit.
7. Given the above, I do proceed to dismiss this suit for want of prosecution. The 2nd and 5th defendants will have the costs of the two applications and of this suit.
8. Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA this 6th day of November 2019.
_______________________
MUNYAO SILA,
JUDGE.
IN THE PRESENCE OF:
Mrs. Kyalo for the 2nd defendant/applicant.
Mr Amadi holding brief for Ms. Mboko for the 5th defendant.
No appearance on the part of M/s Odour Siminyu & Company Advocates for the plaintiff.
Court Assistant; Koitamet.