[2019] KEELC 2828 (KLR)
The court found that the Plaintiff had failed to take any steps to prosecute the suit for over five years since 10/4/2013. The Plaintiff did not respond to the application for dismissal, despite being served. The court was satisfied that the delay was inordinate and inexcusable, and that the 1st Defendant was...
Source-derived case information.
- Citation
- [2019] KEELC 2828 (KLR)
- Parties
- Plaintiff: Kenya Quarry Self Help Group; Defendant: Gituamba Stones Limited; Defendant: Kenyatta University Co-op. Society
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 904 of 2012
- Procedural Posture
- Land and Property Suit / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- Plaintiff's suit dismissed for want of prosecution. Costs awarded to the 1st Defendant.
- Legal Topics
- Want of Prosecution, Injunctive Relief, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Quarry Self Help Group
Plaintiff
Gituamba Stones Limited
Defendant
Kenyatta University Co-op. Society
Defendant
Procedural Posture
Land and Property Suit / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the Plaintiff's suit should be dismissed for want of prosecution.
- 2 Whether the Plaintiff took any steps to prosecute the suit since 10/4/2013.
- 3 Whether the 1st Defendant is prejudiced by the continued pendency of the suit.
Ratio Decidendi
The court found that the Plaintiff had failed to take any steps to prosecute the suit for over five years since 10/4/2013. The Plaintiff did not respond to the application for dismissal, despite being served. The court was satisfied that the delay was inordinate and inexcusable, and that the 1st Defendant was prejudiced by the continued pendency of the suit. Accordingly, the court exercised its discretion to dismiss the Plaintiff's suit for want of prosecution and awarded costs to the 1st Defendant.
Court Disposition
Plaintiff's suit dismissed for want of prosecution. Costs awarded to the 1st Defendant.
Orders
- The Plaintiff's suit is dismissed for want of prosecution.
- The 1st Defendant is awarded the costs of the application and the suit.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC NO.904 OF 2012
KENYA QUARRY SELF HELP GROUP...........................................PLAINTIFF
VERSUS
GITUAMBA STONES LIMITED............................................1ST DEFENDANT
KENYATTA UNIVERSITY CO-OP. SOCIETY.....................2ND DEFENDANT
RULING
This Plaintiff filed this suit on 28/11/2012 seeking a declaration that it was the owner of L.R No.11494/6 based on the ground that its members had been carrying on the business of stone harvesting on this land since 1998. It contended that on or about 21/11/2012, the Defendants invaded the suit land and threatened to evict the Plaintiff from the suit land. The Plaintiff sought a permanent injunction to restrain the Defendants or persons claiming under them from interfering with the suit property.
Contemporaneously with the filing of the plaint, the Plaintiff filed the application dated 26/11/2012 seeking an injunction to restrain the Defendants from interfering with its possession of the suit property. The application was placed before the court on 28/11/2012 and was certified urgent. The Plaintiff was directed to serve the Defendants for inter partes hearing on 5/12/2012. The court record shows that the application dated 26/11/2012 was dismissed on 10/4/2013 for non-prosecution. On 14/3/2018, the matter was listed for mention when only the 1st Defendant’s Advocate attended court.
The 1st Defendant filed the application dated 18/6/2018 seeking to dismiss the Plaintiff’s suit for want of prosecution on the grounds that the Plaintiff had failed to have the matter set down for hearing since 10/4/2013 and that it was in the interest of justice that the 1st Defendant should be discharged from obligations imposed by the suit as the Plaintiff had lost interest in it. The application is supported by the affidavit of the 1st Defendant’s counsel, W. K Kabaiku, sworn on 18/6/2018 who deponed that the 1st Defendant was not served with Summons to enter appearance in this matter, and that it is now over five years since the Plaintiff last moved the court. He urged the court to dismiss the suit since the 1st Defendant continues to suffer prejudice as long as the suit is pending.
The court has considered the application and the supporting affidavit. The Plaintiff did not file a reply to the 1st Defendant’s application, despite there being evidence that its advocates were served with the application together with the hearing notice. The court is satisfied that over five years have elapsed since the Plaintiff last took steps in the suit. The Plaintiff’s suit is dismissed. The 1st Defendant is awarded the costs of the application and the suit.
Dated and delivered at Nairobi this 27th day of May 2019
K.BOR
JUDGE
In the presence of: -
Mr. V. Owuor- Court Assistant
No appearance for the Plaintiff and the Defendants