[2019] KEELC 934 (KLR)
The court found that the plaintiffs failed to provide credible evidence to support their claim that the court file was missing, as there was no correspondence or application to reconstruct the file. The explanation that the delay was due to court backlog was rejected, as it is the duty of the plaintiff to take...
Source-derived case information.
- Citation
- [2019] KEELC 934 (KLR)
- Parties
- Plaintiff: Korner Ochieng Oyoo; Plaintiff: Helena Anyango Ombanda; Defendant: Maria Oloo Oliech; Defendant: Felix Juma Omudho
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 101 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs
- Judges
- TM Olando
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Court Backlog, Missing Court File
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Korner Ochieng Oyoo
Plaintiff
Helena Anyango Ombanda
Plaintiff
Maria Oloo Oliech
Defendant
Felix Juma Omudho
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the plaintiffs have provided sufficient justification for the delay in prosecuting the suit.
- 3 Whether the allegation of a missing court file is substantiated.
Ratio Decidendi
The court found that the plaintiffs failed to provide credible evidence to support their claim that the court file was missing, as there was no correspondence or application to reconstruct the file. The explanation that the delay was due to court backlog was rejected, as it is the duty of the plaintiff to take proactive steps to prosecute their case. The court held that no sufficient cause was shown to warrant setting aside the dismissal for want of prosecution, and therefore the application lacked merit.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the order dismissing the suit for want of prosecution is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO. 101 OF 2014
KORNER OCHIENG OYOO...................................................1ST PLAINTIFF
HELENA ANYANGO OMBANDA.........................................2ND PLAINTIFF
(Both suing as the next of kin and Administrators of the Estate of the late (REMJIUS OYOO ALUODO).
VERSUS
MARIA OLOO OLIECH.................................................. 1ST DEFENDANT
FELIX JUMA OMUDHO................................................2ND DEFENDANT
RULING
1. The Plaintiff/Applicant comes to court vide application dated 9th April 2019 seeking orders that the order of the court made on 15/3/2018 by Hon. Justice Kibunja dismissing the suit for want of prosecution be set aside and the Plaintiff’s suit be reinstated for hearing.
2. The Plaintiff states in the supporting affidavit that the delay in prosecution of the case was occasioned by the backlog in this court before the Court of Appeal’s decision on jurisdiction of Magistrates Court in land matters. He further states that the court file could not be traced for a long time.
3. In the replying affidavit, Felix Juma Omudho states that the Plaintiffs filed the suit in 2014 and the defendant filed appearance on 9/7/2014. Thereafter, no steps were undertaken to fix the suit for hearing. There is no evidence of the missing file.
4. I have considered the application and the replying affidavit and do find that the plaintiff filed suit on 9/4/2014. The defendants filed memorandum of appearance on 29/5/2014 and defence on 9/7/2014.
5. No activity or proceedings took place until the court moved under the provisions of Order XVII Rule 2 as it then, but now Order 17 rule 2 of the Civil Procedure Rules 2010 to dismiss the suit for want of prosecution. The suit was dismissed for want of prosecution. The applicant seeks to set aside the order for dismissal for want of prosecution.
6. The allegation that the file was missing has not been proved as no single letter to the Deputy Registrar has been given. Moreover, there is no application to reconstruct the file. The argument that failure to prosecute the case was due to backlog does not have merit as it was the duty of the plaintiff to visit the registry and take steps towards the hearing of the suit and not to wait the court to do so.
7. The upshot of the above is that the application has no merit and dismissed with costs. Orders accordingly.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
DATED AND DELIVERED THIS 8TH DAY OF NOVEMBER, 2019.
In the presence of:
Orieyo for Mgoye for Applicant.
N/A for the Respondent.
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE