[2014] KEELC 446 (KLR)
The court held that the plaintiff had failed to provide any explanation for the prolonged delay in prosecuting the suit since it was last in court on 24th May 2010. The mere non-compliance with the Civil Procedure Rules or reliance on Article 159 of the Constitution does not shield a party from the consequences of...
Source-derived case information.
- Citation
- [2014] KEELC 446 (KLR)
- Parties
- Plaintiff: Kuchanja Mwambue Kalama; Defendant: Joseph Omoti Tenywa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Land Case 67 'A' of 2013
- Procedural Posture
- Land Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application allowed; suit dismissed for want of prosecution.
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order 17 Rule 2, Compliance With Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kuchanja Mwambue Kalama
Plaintiff
Joseph Omoti Tenywa
Defendant
Procedural Posture
Land Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay by the plaintiff.
- 2 Whether non-compliance with the Civil Procedure Rules precludes dismissal for want of prosecution.
- 3 Whether Article 159 of the Constitution prevents dismissal on technical grounds.
Ratio Decidendi
The court held that the plaintiff had failed to provide any explanation for the prolonged delay in prosecuting the suit since it was last in court on 24th May 2010. The mere non-compliance with the Civil Procedure Rules or reliance on Article 159 of the Constitution does not shield a party from the consequences of inordinate delay. The court emphasized that it is the duty of the plaintiff to take steps to move the suit forward and comply with procedural requirements. In the absence of any reasonable explanation for the delay, and in the interest of expeditious disposal of cases, the court found it appropriate to allow the defendant's application and dismiss the suit for want of prosecution.
Court Disposition
Application allowed; suit dismissed for want of prosecution.
Orders
- The defendant's application dated 31st October 2012 is allowed.
- The suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT
AT MALINDI
LAND CASE NO. 67 'A' OF 2013
KUCHANJA MWAMBUE KALAMA.......................................................PLAINTIFF
=VERSUS=
JOSEPH OMOTI TENYWA...................................................................DEFENDANT
R U L I N G
Introduction
What is before me is the Defendant's Application dated 31st October 2012 seeking for the dismissal of the suit for want of prosecution.
The Application is premised on the ground that the Plaintiff has neglected and or otherwise failed to set down the suit for hearing for over twenty months.
The Application is supported by the Defendant's affidavit.
The Plaintiff did not file any response in opposition to the said Application although his counsel appeared before me on 12th February 2014 when the Application came up for hearing.
The Defendant's counsel reiterated in his submissions that a delay of over twenty months to prosecute the suit is inordinate and that the suit should be dismissed pursuant to the provisions of Order 17 Rule 2 of the Civil Procedure Rules.
In his response, the Plaintiff's counsel submitted that the parties have not complied with the provisions of Order 11 of the Civil Procedure Rules and that Article 159 of the Constitution provides that substantive justice should be administered without undue regard to technicalities.
This suit was filed in the year 2009, by which time the Civil Procedure Rules had not been promulgated. Although it can be argued, and correctly so, that the 2010 Civil Procedure Rules are applicable to this suit, the Plaintiff has not offered an explanation as to why he has not complied with the said Rules since the year 2010.
I do not agree with the proposition that a suit cannot be dismissed for want of prosecution just because the parties have not complied with the provisions of the Civil Procedure Rules or any other law. Once a party files a suit in court, it is incumbent upon him to put in motions mechanisms to comply with the law within a reasonable period and prosecute the case expeditiously, and without undue delay (See Article 159 (2) (b) and Section 1A of the Civil Procedure Act).
In the absence of an explanation as to why this suit has not been prosecuted since 24th May 2010 when it was last in court, I shall, which I hereby do, allow the Defendant's Application dated 31st October 2012 as prayed.
Dated and delivered in Malindi this 19th Day of March 2014
O. A. Angote
Judge