[2014] KEHC 2801 (KLR)
Although there was a significant delay by the plaintiff in prosecuting the suit, including a four-month delay in responding to the application for dismissal, the court considered the emotive nature of land disputes and the interest of justice. The court exercised its discretion not to dismiss the suit outright but...
Source-derived case information.
- Citation
- [2014] KEHC 2801 (KLR)
- Parties
- Plaintiff: Letema Ole Silalei Sikamba; Defendant: Stanley Parit Mbukoi; Defendant: Mailua Group Ranch
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 387 of 2011
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Conditional adjournment; suit not dismissed but subject to strict timeline.
- Judges
- LN Mutende
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Land Disputes, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Letema Ole Silalei Sikamba
Plaintiff
Stanley Parit Mbukoi
Defendant
Mailua Group Ranch
Defendant
Procedural Posture
Civil Suit / 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 the interests of justice require the suit to be heard on its merits despite the delay.
Ratio Decidendi
Although there was a significant delay by the plaintiff in prosecuting the suit, including a four-month delay in responding to the application for dismissal, the court considered the emotive nature of land disputes and the interest of justice. The court exercised its discretion not to dismiss the suit outright but instead directed the plaintiff to prosecute and determine the case within 180 days, failing which the suit would stand dismissed. This approach balances the need to avoid undue delay and abuse of process with the imperative to resolve land disputes on their merits.
Court Disposition
Conditional adjournment; suit not dismissed but subject to strict timeline.
Orders
- The respondent/plaintiff is directed to cause the case to be prosecuted and determined within 180 days from the date of the ruling.
- In default, the suit shall stand dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL SUIT NO. 387 OF 2011
LETEMA OLE SILALEI SIKAMBA ……………………………………..PLAINTIFF
VERSUS
STANLEY PARIT MBUKOI…………………………………….....1ST DEFENDANT
MAILUA GROUP RANCH………………………………………...2ND DEFENDANT
RULING
The application dated 7th February, 2014, brought pursuant to the provisions of Section 3A of the Civil Procedure Act, Order 17 rule 2(3), Order 51 Rule 1 of the Civil Procedure Rules seeks dismissal of the suit for want of prosecution. It is premised on grounds that the applicant has failed to take a step to prosecute the suit, a year down the line after its institution.
The said application is supported by an affidavit deponed by Sigei K. Hillary an advocate in conduct of the matter who states that the plaintiff/respondent herein filed this suit with an application by way of Notice of Motion seeking to injunct and inhibit the defendant/applicant from dealing in the property belonging to the 1st respondent/applicant. The application was dismissed. Although the plaintiff served the defendant with the plaint, verifying affidavit and a list of documents, no summons to enter appearance were extracted for service upon the applicant. Failure to prosecute the suit, a year having lapsed was evidence of loss of interest in the same. Terming the suit an abuse of the court process, he stated that it was in the interest of justice to have it dismissed.
It took the respondent /plaintiff four months to file a response to the application. In a replying affidavit dated 6th June, 2014 admitted by leave of court in the interest of justice,Letema Ole Silalei Sikamba the respondent/plaintiff dispones that the ruling in the application was delivered on 26th April, 2013 having filed a notice to appeal on 10th May, 2013. Thereafter, he abandoned the appeal intending to proceed with trial. He reiterated his intention to have the suit prosecuted.
Having considered rival submissions by both counsels and further, having perused the court record I do note that there is a statement of defence dated 3rd February, 2012 on record. The ruling to the application seeking injunction orders was delivered on the 26th April, 2013.
On the 10th May, 2013, a notice of appeal was duly filed in court. On the 24th May, 2013, a letter seeking to be provided with copies of proceedings and the ruling was received at the registry. Nine (9) months have elapsed from then. The fact that it took the respondent four (4) months to respond to the application is also evidence of lack of seriousness on the respondent’s part.
However, I do note that this being a land matter which is usually emotive in nature, it is in the interest of justice that the case be heard on merit. I therefore direct the respondent/plaintiff to cause the case to be prosecuted and determined within 180 days from today. In default the suit to stand dismissed.
Costs of the application in any event shall be paid by the respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at MACHAKOS this 8TH day of SEPTEMBER, 2014.
L.N. MUTENDE
JUDGE