[2020] KEELC 3784 (KLR)
The court found that although there was a delay of slightly over one year in prosecuting the suit after the ruling, the delay was not inordinate given the context that the parties are husband and wife and may have been attempting an out-of-court settlement. The court held that the interests of justice require...
Source-derived case information.
- Citation
- [2020] KEELC 3784 (KLR)
- Parties
- Plaintiff: Knight Moraa Omwoyo; Defendant: Willis Abwao Adero
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 298 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Prejudice to Defendant, Out of Court Settlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Knight Moraa Omwoyo
Plaintiff
Willis Abwao Adero
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay by the plaintiff.
- 2 Whether the delay in prosecuting the suit is inordinate and prejudicial to the defendant.
- 3 Whether the interests of justice require the suit to be heard on merit despite the delay.
Ratio Decidendi
The court found that although there was a delay of slightly over one year in prosecuting the suit after the ruling, the delay was not inordinate given the context that the parties are husband and wife and may have been attempting an out-of-court settlement. The court held that the interests of justice require matters to be determined on merit, and there was no sufficient prejudice to the defendant to warrant dismissal. Therefore, the application to dismiss the suit for want of prosecution was dismissed, with no order as to costs.
Court Disposition
application dismissed
Orders
- The application dated 20th March, 2019 is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 298 OF 2017
KNIGHT MORAA OMWOYO......PLAINTIFF
VERSUS
WILLIS ABWAO ADERO .........DEFENDANT
RULING
1. In the Notice of Motion dated on 20th March, 2019, the Defendant is seeking for the following orders:
a. That the Plaintiff’s suit against the Defendant be dismissed for want of prosecution.
b. That the costs of this Application and the suit herein be awarded to the Defendant.
2. The Application is premised on the depositions of the Defendant who has stated that the Plaintiff filed this suit on 12th July, 2017; that he filed a Defence through his advocate on 13th September, 2017; that a Ruling in respect to the Preliminary Objection and the Application dated 11th July, 2019 was delivered on 2nd March, 2018 and that the Plaintiff has taken no steps to fix the suit for hearing.
3. The Defendant finally deponed that he is highly prejudiced with the delay in the prosecution of the suit because he cannot develop the suit property and that the current Application should be dismissed.
4. In the Replying Affidavit, the Plaintiff’s advocate deponed that after the Ruling of the court, the Plaintiff has been making attempts to have an out of court settlement; that the Plaintiff is the wife to the Defendant and that it is a cardinal principle of law that matters should be determined on merit. The Plaintiff’s advocate filed written submissions which I have considered.
5. The record shows the Plaintiff commenced this suit by way of a Plaint dated 11th July, 2017 together with an Application for injunction of the same date. The Ruling in respect to the Application dated 11th July, 2017 was delivered by this court on 2nd March, 2018.
6. Upon the delivery of the Ruling, the Plaintiff did not fix the matter for pre-trial directions or for hearing. According to the Plaintiff, the parties, being a wife and husband, they have been negotiating the dispute, thus the delay in fixing the matter for hearing.
7. The grounds for dismissal of a suit for want of prosecution are now settled. In the case of Ivita vs. Kyumbu (1975) eKLR, the court held as follows:
“The Defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay and that justice can still be done to the parties notwithstanding the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”
8. In Agip (Kenya)Limited vs. Highlands Tyres Limited (2001) KLR, 630, the court stated as follows:
“Where a reason for the delay is offered, the court should be lenient and allow the Plaintiff an opportunity to have his case determined on merit. The court must also consider whether the Defendant has been prejudiced by the delay.”
9. As was held in the case ofInvesco Insurance Company Limited vs. Oyange Barrack (2018) eKLR, the court should be slow to dismiss a suit for want of prosecution if satisfied that the suit can proceed without further delay, and that the Defendant will suffer no hardships.
10. The delay in prosecuting this suit after the delivery of the Ruling has been slightly over one (1) year. Although the said delay may be long, the same is not inordinate. Indeed, considering that the dispute is between a wife and husband, parties could have attempted to settle the matter out of court as submitted by the Plaintiff’s advocate, thus the delay.
11. In the circumstances, and to allow parties to be heard on merit, I shall not dismiss the suit for want of prosecution. The Application dated 20th March, 2019 is therefore dismissed but with no orders as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 31ST DAY OF JANUARY, 2020
O. A. ANGOTE
JUDGE