[2020] KEELC 543 (KLR)
The court found that the Plaintiff failed to provide sufficient evidence to justify the delay in prosecuting the suit. Although the Plaintiff was hospitalized for ten days in January 2017, there was no evidence of incapacity between 2015 and 2017 or for the extended period from 2009 to 2020. The Plaintiff admitted...
Source-derived case information.
- Citation
- [2020] KEELC 543 (KLR)
- Parties
- Applicant: Isaac Manza Kitela; Respondent: Beatrice Mutio Kitela; Respondent: Festus Musyoka Kitela
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 137 of 2009
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Delay in Prosecution, Order 17 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Manza Kitela
Applicant
Beatrice Mutio Kitela
Respondent
Festus Musyoka Kitela
Respondent
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the Plaintiff has provided sufficient cause to set aside the dismissal of the suit for want of prosecution.
- 2 Whether the Plaintiff's illness justified the failure to prosecute the suit or instruct counsel.
- 3 Whether the delay in prosecuting the suit was inordinate and inexcusable.
Ratio Decidendi
The court found that the Plaintiff failed to provide sufficient evidence to justify the delay in prosecuting the suit. Although the Plaintiff was hospitalized for ten days in January 2017, there was no evidence of incapacity between 2015 and 2017 or for the extended period from 2009 to 2020. The Plaintiff admitted that his advocate was served with the notice to show cause but failed to act due to lack of instructions. The court held that the Plaintiff did not demonstrate a valid reason for the prolonged inaction and that the application to set aside the dismissal was unmeritorious. Consequently, the application was dismissed.
Court Disposition
application dismissed
Orders
- The Plaintiff's application dated 10th March, 2020 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 137 OF 2009
ISAAC MANZA KITELA......................................PLAINTIFF/APPLICANT
VERSUS
BEATRICE MUTIO KITELA.................1ST DEFENDANT/RESPONDENT
FESTUS MUSYOKA KITELA...............2ND DEFENDANT/RESPONDENT
RULING
1. In the Notice of Motion dated 10th March, 2020, the Plaintiff prayed for the following orders:
a.That this Honourable Court be pleased to set aside the Orders made on 29th September, 2017 dismissing the Plaintiff’s suit and reinstate it so that the Plaintiff can prosecute his case on merits.
b.That costs of this Application be in the cause.
2. The Application is premised on the Affidavit of the Plaintiff who has deponed that this suit was dismissed on 29th September, 2017 and that the dismissal was occasioned by his failure to furnish his former advocate with proper instructions because he had been hospitalized between the year 2017 until 2019.
3. The Plaintiff deponed that his former advocates tried to reach him but to no avail; that it is only fair and just that an Advocate be furnished with instructions during the prosecution of his client’s case and that the suit was dismissed due to no fault of his advocate but as a result of his illness.
4. In response, the 2nd Defendant deponed that the Application is an afterthought; that the Plaintiff filed this suit on 7th May, 2009 and never took any steps to prosecute it and that the Plaintiff is guilty of laches as there has been inordinate delay in bringing the Application.
5. The Defendant deponed that the Plaintiff has only availed the hospital documents for the year 2017; that there is no evidence to show where the Plaintiff was since 2009 to 2020 and that the Application should be dismissed.
6. The record shows that on 7th May, 2009, the Plaintiff commenced this suit by filing a Plaint of the same date. The Defendant then filed a Defence on 29th June, 2009.
7. On 11th November, 2014, the parties’ advocates informed the court that they had complied with Order 11 of the Civil Procedure Rules. The court then fixed the matter for hearing on 19th January, 2015.
8. On 19th January, 2015, the court was informed that the 1st Defendant had passed on. Since that date, the Plaintiff never fixed the matter for mention or hearing, until 29th September, 2019 when the court, on its own Motion, dismissed the suit for want of prosecution.
9. Order 17 Rule 2(1) of the Civil Procedure Rules 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 dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”
10. The Plaintiff has not denied that his advocate was served with the Notice to show cause why the suit should not be dismissed for want of prosecution. Indeed, according to the Plaintiff, he is the one who failed to give his advocate instructions because he was ill.
11. The Discharge Summary annexed on the Plaintiff’s Affidavit shows that he was admitted at Radiant Group of Hospitals on 6th January, 2017 and discharged on 14th January, 2017. The Plaintiff was therefore in hospital as an inpatient for around ten (10) days only.
12. This court has not been furnished with any evidence to show that between the year 2015 and 2017, the Plaintiff was sick to the extent that he was incapable of furnishing his advocate with instructions.
13. That being so, it is my finding that the Plaintiff’s Application dated 10th March, 2010 is unmeritorious. The Application is dismissed with no order as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 27TH DAY OF NOVEMBER, 2020.
O.A. ANGOTE
JUDGE