[2018] KEELC 3825 (KLR)
The court found that, despite the filing of submissions by both parties, the Applicant failed to attend court or take steps to prosecute the Originating Summons after his advocate withdrew from the record. The Applicant did not appear in person or instruct another advocate to proceed with the matter. As a result,...
Source-derived case information.
- Citation
- [2018] KEELC 3825 (KLR)
- Parties
- Applicant: Joseph Wandabi; Respondent: Serah Mary Magera
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 214 of 2017
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- dismissed for want of prosecution
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Vesting Order, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wandabi
Applicant
Serah Mary Magera
Respondent
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the Applicant is entitled to ownership of Land Reference Number 12715/142 by virtue of adverse possession.
- 2 Whether the Applicant has been in open, continuous, and exclusive possession of the suit land for over twelve years.
- 3 Whether the suit should be dismissed for want of prosecution.
Ratio Decidendi
The court found that, despite the filing of submissions by both parties, the Applicant failed to attend court or take steps to prosecute the Originating Summons after his advocate withdrew from the record. The Applicant did not appear in person or instruct another advocate to proceed with the matter. As a result, the court declined to consider the merits of the claim for adverse possession and dismissed the suit for want of prosecution, holding that the Applicant bore the responsibility to actively prosecute his case and, having failed to do so, the suit could not proceed to determination on the merits.
Court Disposition
dismissed for want of prosecution
Orders
- The Originating Summons dated 5th May, 2017 is dismissed for want of prosecution.
- Costs awarded to the Respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 214 OF 2017 (O.S)
JOSEPH WANDABI....................................PLAINTIFF/APPLICANT
VERSUS
SERAH MARY MAGERA..................DEFENDANT/RESPONDENT
JUDGMENT
1. This suit was commenced by way of Originating Summons dated 5th May, 2017 in which the Applicant was seeking for the following orders:
a. That the Plaintiff/Applicant is entitled to ownership of all that parcel of land known as Land Reference Number 12715/142 with IR number 44449 by virtue of adverse possession of land and a vesting order be issued in favour of the Plaintiff/Applicant over the said Land Reference Number 12715/142 with IR number 44449 situate in Syokimau area, Machakos County.
b. That the parcel of land known as Land Reference Number 12715/142 be and is hereby transferred to the Plaintiff/Applicant.
c. That the Chief Land Registrar issues the Plaintiff/Applicant with a title to the said parcel of land known as Land Reference Number 12715/142.
d. That costs of this Application be awarded to the Plaintiff/Applicant.
2. The Originating Summons is premised on the ground that the Applicant has been in physical occupation of L.R. No. 12715/142 for over twelve (12) years; that his occupation has been open, uninterrupted and continuous for over twelve (12) years to the exclusion of any other party and that he has lived on the land for over twelve (12) years with his family.
3. The Originating Summons was served on the Defendant by way of advertisement in the Standard newspaper of 22nd May, 2017.
4. On 10th July, 2017, the court directed that the matter proceed by way of written submissions. The court further directed that the submissions be served within twenty one (21) days.
5. On 31st July, 2017, after the court had issued directions, the Respondent filed a Replying Affidavit in opposition to the Originating Summons.
6. In the Replying Affidavit, the Respondent deponed that she bought the suit land in 1988; that she has never deserted the land; that the Applicant has never lived on the land and that she fenced the land and hired a security guard to look after the land.
7. Although the Applicant’s advocate had filed his submissions, he withdrew from acting for the Applicant vide an Application dated 10th October, 2017. The Respondent served the Applicant with a mention notice vide the registered post.
8. Having withdrawn from acting for the Plaintiff, and the Applicant having failed to attend court to inform the court how he wishes to prosecute the suit, I am of the view that the suit remains unprosecuted.
9. Indeed, notwithstanding the fact that both the Applicant’s and Respondent’s advocate had filed their respective submissions, the Applicant ought to have come on record either in person or through another advocate to prosecute the Originating Summons.
10. Having failed to attend court to prosecute the suit, I shall not go into the issue of whether he has proved the case on a balance of probability or not. Rather, I shall, which I hereby do, dismiss the Originating Summons dated 5th May, 2017 with costs for want of prosecution.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 13TH DAY OF APRIL, 2018.
O.A. ANGOTE
JUDGE