[2019] KEELC 4798 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for more than two years, despite having filed the suit and an application for injunction. The delay was attributable to the plaintiff, and no cause was shown to justify the inaction. The court exercised its discretion under Order...
Source-derived case information.
- Citation
- [2019] KEELC 4798 (KLR)
- Parties
- Plaintiff: Josiah Mucheru B. Kihereko; Defendant: Ellen Wambui; Defendant: Gladys Wairimu; Interested Party: Mary Wambui Njoroge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 571 of 2013
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the interested party/applicant
- Judges
- LC Komingoi
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court Discretion, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josiah Mucheru B. Kihereko
Plaintiff
Ellen Wambui
Defendant
Gladys Wairimu
Defendant
Mary Wambui Njoroge
Interested Party
Procedural Posture
Civil Case / Ruling on Notice of Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay by the plaintiff.
- 2 Whether the interested party/applicant is entitled to costs.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for more than two years, despite having filed the suit and an application for injunction. The delay was attributable to the plaintiff, and no cause was shown to justify the inaction. The court exercised its discretion under Order 17 Rule 2 of the Civil Procedure Rules to dismiss the suit for want of prosecution, finding that the plaintiff had lost interest in the matter. The application by the interested party was therefore merited and allowed, with costs awarded to the applicant.
Court Disposition
suit dismissed for want of prosecution with costs to the interested party/applicant
Orders
- The suit is dismissed for want of prosecution.
- Costs are awarded to the interested party/applicant.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CIVIL CASE NO. 571 OF 2013
JOSIAH MUCHERU B. KIHEREKO……...…..1ST PLAINTIFF/RESPONDENT
-VERSUS-
ELLEN WAMBUI………………………….......1ST DEFENDANT/RESPONDENT
GLADYS WAIRIMU………………...….….....2ND DEFENDANT/RESPONDENT
MARY WAMBUI NJOROGE…….....……..INTERESTED PARTY/APPLICANT
RULING
1. This is the Notice of Motion dated 17th January 2017. It is brought under Section 13 of the Environment and Land Court Act, Order 17 Rule 2 of the Civil Procedure Rules and all other enabling provisions of the law.
2. It seeks orders that this suit be and is hereby dismissed with costs for want of prosecution.
3. The grounds are on the face of the application and are set out in paragraphs a to i.
4. The application is supported by the affidavit of Mary Wambui Njoroge the interested party/applicant sworn on the 17th January 2017.
5. On the 20th June 2017, the court directed the plaintiff/respondent to file his response to the application within fourteen (14) days. On the 18th September 2017, no response had been filed and the court directed the interested party/applicant to file their written submissions.
6. The application is not opposed. I have gone through the court record. The plaintiff/applicant filed this suit vide a plaint dated 15th May 2013. He also filed a notice of motion seeking orders of injunction. To date he has not been ready to prosecute the application to conclusion. Most of the delays have been occasioned by the plaintiff/applicant. The last time the matter was in court prior to the filing of the instant application was on 5/11/14. More than two (2) years had lapsed before the filing of this application.
7. Order 17 Rule 2 (1) of the Civil Procedure Rules provides as follows:-
“In any suit in which no application has been made or steps 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 be dismiss the suit.”
Order 17 rule 2 (3) provides that:-
“Any party to the suit may apply for its dismissal as provided in sub rule 1”.
8. The plaintiff appears to have lost interest in this matter. I find merit in this application and the same is allowed. I hereby dismiss this suit with costs to the interested party/applicant.
It is so ordered.
Dated, signed and delivered in Nairobi on this 31st day of January 2019.
……………………….
L. KOMINGOI
JUDGE
In the presence of:-
……………………...........Advocate for the Plaintiff
………………….…..........Advocate for Defendants
………………...…............Advocate for the interested party
…………….….……….…Court Assistant