[2013] KEHC 5514 (KLR)
The court found that the delay in prosecuting the suit was satisfactorily explained by the plaintiff, who demonstrated that the court file was misplaced due to administrative confusion following the establishment of the Environment and Land Court and the transfer of files from the High Court registry. The court took...
Source-derived case information.
- Citation
- [2013] KEHC 5514 (KLR)
- Parties
- Plaintiff: Jeremiah Musembi Kikuvu; Defendant: Ali Ibido Yusuf; Defendant: Mohamed Bute Galgal; Defendant: The District Land Registrar Lamu
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 164 of 2011
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court Registry Administration, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Musembi Kikuvu
Plaintiff
Ali Ibido Yusuf
Defendant
Mohamed Bute Galgal
Defendant
The District Land Registrar Lamu
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay by the plaintiff.
- 2 Whether the delay in prosecuting the suit was adequately explained by the plaintiff.
Ratio Decidendi
The court found that the delay in prosecuting the suit was satisfactorily explained by the plaintiff, who demonstrated that the court file was misplaced due to administrative confusion following the establishment of the Environment and Land Court and the transfer of files from the High Court registry. The court took judicial notice of the widespread file misplacement during this period and held that the delay was not the plaintiff's fault. Consequently, the application for dismissal for want of prosecution was not merited and was dismissed.
Court Disposition
application dismissed
Orders
- The defendants' application dated 4th May 2013 for dismissal of the suit for want of prosecution is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
CIVIL CASE NO. 164 OF 2011
JEREMIAH MUSEMBI KIKUVI..............................................................PLAINTIFF/RESPONDENT
=VERSUS=
1. ALI IBIDO YUSUF
2. MOHAMED BUTE GALGAL
3. THE DISTRICT LAND REGISTRAR LAMU.............................................DEFENDANTS/APPLICANTS
R U L I N G
The Application before me is the one dated 4th May 2013. The Application is seeking for one substantive order, that the Plaintiff's suit herein against the Defendants be dismissed with costs for want of prosecution.
The Application is based on the grounds that the matter was last in court on 25th February 2012 when a Ruling was delivered, that a period of over one year has lapsed since the Plaintiff last listed the matter in court and that the continued pendence of the suit is prejudicial to the Defendants.
The Plaintiff/Respondent filed his Replying Affidavit on 10th June 2013 and deponed that immediately after this court delivered its Ruling on 25th February 2012, the Defendants approached the Plaintiff for settlement of the matter out of court but they could not agree.
The Plaintiff/Respondent has further deponed that his advocate attempted to have the suit fixed for hearing but when he visited the registry to have the file at the old law courts, the file could not be traced because the it had been misplaced; that the separation of Environment and Land Court files with those of the High Court delayed the finding of the file further; that his advocate was informed recently that the file had been traced and the Defendants immediately filed the present application.
The Plaintiff finally deponed that the Defendants did not take any step to have the matter fixed for hearing, which they could not do because the file was missing and that he is ready to prosecute the suit and the officers of this court can testify in respect to the missing file.
I have taken judicial notice of the fact that when this court was established and the judges appointed in October 2012, there was confusion in respect of transferring files from the High Court registry to the Environment and Land Court registry.
Indeed, the situation was compounded by the fact that the old law court did not even have a registry for the new court due to the limited space. It was not uncommon to see files strewn all over the floor. Most files were misplaced or misfiled around that time.
I am therefore satisfied with the explanation given by the Plaintiff/Respondent for the delay in fixing this matter for prosecution since 28th February 2012 when Meoli J delivered her Ruling.
I therefore dismiss the Defendants'/Applicants' Application dated 4th May 2013. The costs shall be in the cause.
Dated and Delivered in Malindi this 31st day of July,2013
O. A. Angote
Judge