[2019] KEELC 3384 (KLR)
The court found that the applicant delayed inordinately in filing the application to reinstate the suit, with no convincing reasons for the delay. The applicant was deemed indolent and guilty of inordinate delay. The court applied the principle that it is the plaintiff's duty to progress their case and that...
Source-derived case information.
- Citation
- [2019] KEELC 3384 (KLR)
- Parties
- Applicant: Livingstone O. Ogola; Respondent: Joshua Kusingo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 126 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed
- Judges
- NA Matheka
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Injunctions, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Livingstone O. Ogola
Applicant
Joshua Kusingo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated.
- 2 Whether the applicant has provided sufficient reasons for the delay in filing the application to reinstate the suit.
- 3 Whether the injunction orders previously issued should be reinstated and extended.
Ratio Decidendi
The court found that the applicant delayed inordinately in filing the application to reinstate the suit, with no convincing reasons for the delay. The applicant was deemed indolent and guilty of inordinate delay. The court applied the principle that it is the plaintiff's duty to progress their case and that reinstatement depends on whether the delay is excusable and justice can still be served. The reasons advanced for the delay were not persuasive, and the application was considered an afterthought. Consequently, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application to set aside the dismissal and reinstate the suit is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 126 OF 2012
LIVINGSTONE O. OGOLA................PLAINTIFF/APPLICANT
VERSUS
JOSHUA KUSINGO......................DEFENDANT/RESPONDENT
RULING
The application is dated 25th March 2019 and is brought under section 3 & 3A of the Civil Procedure Act, Order 12 rule 7 and Order 8 rule 3 (i) of the Civil Procedure Rules seeking the following orders:-
1. That the orders for dismissal of the above captioned suit on or about the 17th October, 2017 for want of prosecution be set aside and the said case be reinstated for interparty hearing.
2. That the orders for injunction issued therein vide the ruling dated 20th March, 2013 be reinstated and extended pending the hearing and determination of the main suit.
3. That this honourable court be pleased to grant the applicant leave to amend the plaint to include the acts of trespass and the same draft be deemed as duly filed upon payment of the requisite fees.
4. The costs herein be in the cause.
It is based on the affidavit of Livingstone O. Ogola and on the following general grounds, that the plaintiff never received any information regarding the dismissal of the said suit. That there was no land court and the plaintiff was never informed on when it resumed. That the plaintiff has a good case with high chances of success. That the dismissal of this case will make the applicant suffer irreparably as the matter touches on land which is a sensitive issue. That failure of the applicant to include the acts of trespass may be fatal since the nature of the developments in respect to the suit land has changed. That the delay in filing this application is excusable since the applicant was seeking legal advice and finances to facilitate the filing thereof. That it is proper and just for the plaintiff to include the acts of trespass and tilling.
The applicant submitted that he filed the suit and the same proceeded for the hearing of the application therein until the ruling was delivered on the 20th March, 2013. That due to the foregoing the District Land Registrar visited the disputed land parcel whereby they filed a report in the court file since the substantive suit was pending for hearing and determination. That there was a time when there was no land court judge at Kakamega High Court and in the due course they were instructed to be patient and wait until the time when the land court will resume. That he stayed at home without receiving any information in respect to the aforegoing until he went to inquire about his case in the year 2018. That he was surprised to note that his case was dismissed on or about the 17th of October, 2017 for want of prosecution. That he was never notified of the said date when the file was taken to court.
This court has considered the application and the submissions therein. The respondent was served and failed to attend court and the application was not opposed. I have perused the court file and find that this suit was dismissed on 17th October 2017. It is was not until the 25th March 2019 that the present application was filed. I find that there is inordinate delay in filing this application and the same is an afterthought. Reasons advanced for the delay are not convincing. The applicant has been indolent and is guilty of inordinate delay.
In the case of Utalii Transport Company Ltd & 3 Others vs NIC Bank & Another (2014) eKLR, the court held that it is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court. The decision on whether the suit should be reinstated for trial is a matter of justice and it depends on the facts of the case. In Ivita v Kyumbu (1984) KLR 441, Chesoni J as he then was, stated that the test is whether the delay is prolonged and inexcusable and if justice will be done despite the delay. Justice is justice for both the plaintiff and the defendant. I find this application has no merit and I dismiss it with no orders as to costs as it was undefended.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 14TH DAY OF MAY 2019.
N.A. MATHEKA
JUDGE