[2017] KEELC 3071 (KLR)
The court found that the plaintiffs had demonstrated sufficient cause for the delay in prosecuting the suit. The evidence showed that the plaintiffs, through their new advocates, made genuine efforts to set the matter down for hearing but were unable to obtain dates due to the court diary being full. The court...
Source-derived case information.
- Citation
- [2017] KEELC 3071 (KLR)
- Parties
- Plaintiff: John Maina & 23 Others; Defendant: Settlement Fund Trustees; Defendant: Ngari Mahihu; Defendant: Alfred Jomba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 93 of 2013
- Procedural Posture
- Notice to Show Cause / Ruling on Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; parties directed to comply with Order 11 within thirty days.
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Order 17 Rule 2, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Maina & 23 Others
Plaintiff
Settlement Fund Trustees
Defendant
Ngari Mahihu
Defendant
Alfred Jomba
Defendant
Procedural Posture
Notice to Show Cause / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiffs have shown sufficient cause to prevent dismissal of the suit for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules.
- 2 Whether the plaintiffs made reasonable efforts to fix the matter for hearing despite registry constraints.
Ratio Decidendi
The court found that the plaintiffs had demonstrated sufficient cause for the delay in prosecuting the suit. The evidence showed that the plaintiffs, through their new advocates, made genuine efforts to set the matter down for hearing but were unable to obtain dates due to the court diary being full. The court accepted the exhibited correspondence as proof of these efforts. Consequently, the court exercised its discretion not to dismiss the suit and instead directed the parties to comply with pre-trial procedures under Order 11 within thirty days to facilitate expeditious hearing.
Court Disposition
Suit not dismissed; parties directed to comply with Order 11 within thirty days.
Orders
- The suit is not dismissed for want of prosecution.
- Parties to comply with Order 11 within thirty days from the date of the ruling.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
CASE No. 93 OF 2013
JOHN MAINA & 23 OTHERS ………………………............PLAINTIFFS
VERSUS
SETTLEMENT FUND TRUSTEES………..………........1ST DEFENDANT
NGARI MAHIHU…………………………………...........2ND DEFENDANT
ALFRED JOMBA……………………..………...............3RD DEFENDANT
RULING
(Notice to show cause why a suit should not be dismissed under Order 17 rule 2; plaintiffs showed through a replying affidavit that though they had made efforts to fix the matter for hearing, dates were not available at the registry since the court’s diary was full; cause shown, suit not dismissed)
1. On 18th February 2017, the Deputy Registrar of this court issued to the parties herein notice to attend court on 20th March 2017 to show cause why the suit should not be dismissed under Order 17 rule 2 of the Civil Procedure Rules.
2. The suit herein was filed in January 2013 and the matter was last in the cause list on 20th February 2014. None of the parties attended court on that date.
3. rder 17 rule 2 states
Notice to show cause why suit should not be dismissed
(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.
4. It follows that under the rule, the court may upon issuing a notice to show cause, dismiss any suit in which no application has been made or step taken by either party for one year, if cause is not shown to its satisfaction.
5. On 20th March 2017 only counsel for the plaintiffs attended court and relying on a Replying Affidavit sworn by Kipkoech B. Ngetich urged the court not to dismiss the suit.
6. Kipkoech B. Ngetich deposed that the plaintiffs’ desire to fix the matter for hearing were frustrated by their previous counsel on record as a result of which the plaintiffs instructed a new firm of advocates who filed Notice of Change of Advocates on 10th June 2016. That the new firm of advocates made efforts to fix the matter for hearing but were advised by the registry that dates were not available. As testimony to this, copies of letters to the Deputy Registrar of the court dated 24th June 2016 and another dated 8th November 2016 were exhibited.
7. I have considered the notice to show cause and counsel’s submissions. I am satisfied that the plaintiffs have shown sufficient cause. I will therefore not dismiss the suit as had been sought. Instead, I order that parties comply with Order 11 within 30 (thirty) days from the date of delivery of this ruling. I shall give a mention date for purposes of monitoring compliance upon delivery of this ruling.
8. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 28th day of March 2017.
D. O. OHUNGO
JUDGE
In the presence of:
Mr. Langat holding brief for Mr. Kipkoech for the plaintiffs
No appearance for the defendants
Court Assistant: Gichaba