[2018] KEELC 462 (KLR)
The court found that the Plaintiff had not demonstrated sufficient diligence or interest in prosecuting the suit, given the repeated failures to comply with court directions and the long history of inactivity. The Plaintiff's explanations, including the illness of a witness and the late application for a copy of the...
Source-derived case information.
- Citation
- [2018] KEELC 462 (KLR)
- Parties
- Plaintiff: The Legal Representatives of Gregory Kimani Thuita (Deceased); Defendant: The Administrators of the Estate of David Muriuki Kaberere; Defendant: Susan Wanjiru Kaberere; Defendant: The City Council of Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 25 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Suit After Dismissal
- Outcome
- application dismissed
- Judges
- AK Bor
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Compliance, Pre Trial Procedure, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
The Legal Representatives of Gregory Kimani Thuita (Deceased)
Plaintiff
The Administrators of the Estate of David Muriuki Kaberere
Defendant
Susan Wanjiru Kaberere
Defendant
The City Council of Nairobi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Suit After Dismissal
Legal Issues
- 1 Whether the Plaintiff has provided sufficient cause for the reinstatement of the suit dismissed for non-compliance with court directions.
- 2 Whether the court should exercise its discretion to set aside the dismissal order and reinstate the suit.
Ratio Decidendi
The court found that the Plaintiff had not demonstrated sufficient diligence or interest in prosecuting the suit, given the repeated failures to comply with court directions and the long history of inactivity. The Plaintiff's explanations, including the illness of a witness and the late application for a copy of the court order, were not considered adequate justification for the delay. The court emphasized that its discretion to reinstate a suit must be exercised judiciously and that the Plaintiff's conduct did not warrant such indulgence. Consequently, the application to reinstate the suit was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 27/6/2018 for reinstatement of the suit is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CASE NO. 25 OF 2009
THE LEGAL REPRESENTATIVES OF
GREGORY KIMANI THUITA (DECEASED)……………...PLAINTIFF
-VERSUS-
THE ADMINISTRATORS OF THE ESTATE
OF DAVID MURIUKI KABERERE……………...…...1ST DEFENDANT
SUSAN WANJIRU KABERERE…….………………..2ND DEFENDANT
THE CITY COUNCIL OF NAIROBI……..………….3RD DEFENDANT
RULING
The Plaintiff seeks to reinstate this suit which was dismissed on 3/5/2018 in the application dated 27/6/2018. The Plaintiff seeks to set aside the dismissal order which was given for failure to comply with the directions of the court. The court directed in its ruling of 1/11/2017 that the suit was reinstated on condition that it was heard and determined within six months. The suit had earlier been dismissed by Mutungi J. on 26/5/2015. The Plaintiff made an application on 8/6/2017 to reinstate the suit, which was two years after the order of dismissal was made.
Following the court’s decision of 1/11/2017 when the Plaintiff was represented, the Plaintiff did not take any action. The court directed on 1/11/2017 that the hearing would proceed on 22/2/2018 and parties were to appear before the Deputy Registrar for pre-trial compliance on 15/11/2017. The matter came up on 15/11/2017 and was set down for mention on 18/1/2018 with the Plaintiff being directed to comply with order 11 of the Civil Procedure Rules. None of the parties appeared on 18/1/2018 and the matter was put off to 22/2/2018 for mention. The Plaintiff’s advocate informed the Deputy Registrar on 22/2/2018 that they needed more time to comply as their witness was unwell. The advocate also pointed out that there was an order issued by the court for the matter to be heard and determined in six months. The court notes that the Plaintiff applied for a copy of the order issued on 1/11/2017 through their letter received in court on 20/4/2018.
Going by the history of this matter, the court is not satisfied that the Plaintiff has been keen to prosecute this matter which is old. The court declines to exercise its discretion in favour of the Plaintiff to reinstate this suit. The application dated 27/6/2018 is dismissed.
Dated and delivered at Nairobi this 28th day of November 2018.
K. BOR
JUDGE
In the presence of: -
Mr. S. Chege holding brief for Mr. Mumia for the Plaintiff
Mr. V. Owuor- Court Assistant
No appearance for the Defendants