[2018] KEELC 1792 (KLR)
The court found that neither the parties nor their advocates attended court on the scheduled hearing date despite prior notice and multiple opportunities to prosecute the matter. The suit had remained unheard and undetermined for sixteen years, with repeated transfers and lack of progress attributable to both sides....
Source-derived case information.
- Citation
- [2018] KEELC 1792 (KLR)
- Parties
- Applicant: Julius Mbaka; Respondent: Naivasha Kureiya; Respondent: Jane Cianjoka Gancengu Mwiandi alias Jane Cianjoka Mwiandi; Respondent: Dorothy Kagendo Mwindi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 4 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Dismissal for Non Attendance
- Outcome
- suit dismissed for non-attendance under Order 12 Rule 1 of the Civil Procedure Rules
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Non Attendance, Order 12 Rule 1, Transfer of Suit, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Julius Mbaka
Applicant
Naivasha Kureiya
Respondent
Jane Cianjoka Gancengu Mwiandi alias Jane Cianjoka Mwiandi
Respondent
Dorothy Kagendo Mwindi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Dismissal for Non Attendance
Legal Issues
- 1 Whether the suit should be dismissed for non-attendance by both parties and their advocates.
- 2 Whether prolonged delay in prosecution justifies dismissal under Order 12 Rule 1 of the Civil Procedure Rules.
Ratio Decidendi
The court found that neither the parties nor their advocates attended court on the scheduled hearing date despite prior notice and multiple opportunities to prosecute the matter. The suit had remained unheard and undetermined for sixteen years, with repeated transfers and lack of progress attributable to both sides. Applying Order 12 Rule 1 of the Civil Procedure Rules, which empowers the court to dismiss a suit where neither party attends the hearing, the court exercised its discretion to dismiss the suit for want of prosecution. The prolonged delay and lack of diligence by both parties justified the dismissal, and no order as to costs was made.
Court Disposition
suit dismissed for non-attendance under Order 12 Rule 1 of the Civil Procedure Rules
Orders
- The suit is dismissed in terms of Order 12 Rule 1 of the Civil Procedure Rules.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC MISCELLANEOUS CASE NO. 04 OF 2018
JULIUS MBAKA............................................................APPLICANT
VERSUS
NAIVASHA KUREIYA........................................1ST RESPONDENT
JANE CIANJOKA GANCENGU MWIANDI ALIAS
JANE CIANJOKA MWIANDI..........................2ND RESPONDENT
DOROTHY KAGENDO MWINDI....................3RD RESPONDENT
(BEING SUED AS LEGAL REPRESENTATIVE IN THEIR
CAPACITY AS WIDOWS OF THE DECEASED)
RULING
1. This suit was filed in the year 2002. It was formerly Nairobi Civil Case No. 1458 of 2002 (O.S). When it was transferred to Meru it became Meru Civil Case NO. 188 of 2002 (O.S).
2. Over the years the case has been handled by the following Judges: Kasanga Mulwa J, D.A. Onyancha J, R. N. Sitati J, W. Ouko J (as he then was and now a Justice of Appeal), Anyara Emukule J, J. A. Makau J, and P. M. Njoroge J. From the court records it is pellucid that the parties have in many ways continued not to have the case heard and determined expeditiously.
3. On 17th September, 2014, the parties by consent, moved the court to have the matter transferred to Chuka Law Courts where it was handled by the following Judicial Officers: C. K. Obara (SRM), H. M. Mbati (RM), A.G. Kibiru (SPM), L. A. Mumassaba (RM) and J. M. Njoroge (CM).
4. On 9th July, 2018, the parties, by their advocates agreement, had the suit transferred to this court on the basis that it was an O.S. Yet they are the same parties who had in the first place moved the court to transfer the suit from Meru to Chuka.
5. In the presence of the parties’ legal representatives (Mr. I.C. Mugo holding brief for Ogutu for the plaintiff and Mr. A.G. Riungu for the 1st defendant), the court directed that the suit be heard on 20th September, 2018.
6. On 20th September, 2018, the parties and their advocates did not come to court. The suit was called on for hearing outside the court and it was confirmed that the parties were not in attendance. Their advocates were also absent.
7. Order 12, rule 1, reads as follows:
“If on the day for hearing after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit.”
8. This suit has remained unheard and undetermined in the hallowed precints of the judicial pipeline for sixteen years. I opine that it merits dismissal.
9. In the circumstances, this suit is dismissed in terms of order 12 rule 1 of the Civil Procedure Rules.
10. No order is issued as to costs.
Delivered in open court at Chuka this 2nd day of October, 2018 in the presence of:
CA: Ndegwa
Julius Mbaka plaintiff – present
Riungu present for 1st respondent
Mutwiri present for 2nd & 3rd Respondents
Ochieng Ogutu & Company absent for the plaintiff
P.M. NJOROGE
JUDGE