[2017] KEELC 3203 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.423 OF 2015

[FORMERLY CIVIL SUIT NO.29 OF 2010]

KENYA ANTI-CORRUPTION COMMISSION........PLAINTIFF

VERSUS

DR. OBURU ODINGA ..................................1ST DEFENDANT

SAMMY SILAS KOMEN MWAITA…….....2ND DEFENDANT

RULING

1. Dr. Oburu Odinga, the 1st Defendant, moved the court through the notice of motion dated 29th October 2012 seeking to have the suit dismissed for want of prosecution pursuant to Order 17 Rule 2 of the Civil Procedure Rules. The application is based on the seven (7) grounds on its face and is supported by the affidavit sworn by Dr. Oburu Odinga on the 29th October 2012. The main basis of the application being that the Plaintiff has not taken any steps to prosecute the case since 29th October 2010 when a ruling was delivered.

2. The application is opposed by Kenya Anti-Corruption Commission, the Plaintiff, through the replying affidavit of Stanley Miriti, an investigator with the commission, sworn on the 28th March 2013. The Plaintiff, among others, state that the 1st Defendant had offered to surrender the title to the suit land after the revocation of the title under gazatte notice No.15577 of 26th November 2010. That the Plaintiff was in the process of complying with the provisions of Order 11 of the Civil Procedure Rulesand should be granted the opportunity to prosecute their case.

3. The 1st Defendant responded to the Plaintiff replying affidavit through the further affidavit sworn by Dr. Oburu Odinga on the 30th September 2013, among others. denying ever offering to surrender the title to the suit land.

4. The counsel for the 1st Defendant and Plaintiff appeared in court on the 27th October 2016 and agreed to file written submissions on the notice of motion. The counsel for the 1st Defendant filed theirs which is undated, on the 27th October 2016 while counsel for the Plaintiff filed theirs dated 9th January 2017 on the 13th January 2017.

5. The issues for determination by the court are as follows:

a. Whether the Plaintiff has taken any steps to prosecute the case against the two Defendants since 29th October 2010.

b. Whether the delay is inordinate and unreasonable.

c. Whether the suit should be dismissed for staying for over one year without steps to prosecute it having been taken.

d. What orders to issue.

6. The court has carefully considered the grounds on the notice of motion, the affidavit evidence by both parties, the written submissions by both counsel and after perusing the record come to the following findings;

a. That indeed the Plaintiff did not take any steps towards prosecuting this case from the date the ruling of 29th October 2010 was delivered, to the date the 1st Defendant filed their notice of motion dated 29th October 2012 and filed on the 31st October 2012. That between the two dates a period of two years had lapsed and the 1st Defendant was justified in moving the court as he did.

b. That the power to dismiss a suit under Order 17 Rule 2 of the Civil Procedure Rules is discretionally. This is confirmed by the use of the words “may dismiss the suit” where no cause has been shown. That the Plaintiff has in their endeavor to show cause why the suit should not be dismissed explained that it took time to comply with the requirements of Order 11 of Civil Procedure Rulesthat required total disclosure of the partiescase by recording, filing and serving the witness statements and documents. The court has noted that the Plaintiffs list of documents, statements of issues and list of witnesses, all dated 26th April 2016 were filed on the 28th April 2016 which the court takes to be in compliance with the said Order 11 of the Civil Procedure Rules.That the court finds the explanation given to be reasonable.

c. That though the 1st Defendant has shown that the Plaintiff took more than one year to take steps towards prosecuting their case, the explanation offered by the Plaintiff, and the steps so far taken towards complying with Order 11 of Civil Procedure Rules makes the court find and hold that a dismissal order is not the way to go in this case. That however the 1st Defendant should not be condemned to costs of the notice of motion but the same should be in the cause.

7. That flowing from the foregoing, the court finds no merit in the 1st Defendant’s notice of motion dated 29th October 2012 and the same is dismissed with costs in the cause.

It is so ordered.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 12TH DAY OF APRIL 2017

In presence of;

Plaintiff Absent

Defendants Absent

Counsel M/s Maina for the Plaintiff

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

12/4/2017

12/4/2017

S.M. Kibunja Judge

Oyugis court assistant

Parties absent

M/s Maina for the Plaintiff

The Defendants and their counsel absent

Court: Ruling dated and delivered in open court in presence of

M/S Maina for the Plaintiff.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

12/4/2017