[2018] KEHC 7052 (KLR)
The court found that, although the matter is old and there has been delay, the plaintiff has demonstrated some compliance by filing documents and a witness statement. The court also noted that the defendants themselves had not complied with pre-trial requirements and that the death of the 2nd defendant, as well as...
Source-derived case information.
- Citation
- [2018] KEHC 7052 (KLR)
- Parties
- Plaintiff: Maria Konario M’Itwamwari; Defendant: Igoki Mutethia Farmers Coo-p Society; Defendant: Japhet Karuma; Defendant: Zipporah Muchioki
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2009
- Procedural Posture
- Land and Property Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal denied; suit to proceed
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maria Konario M’Itwamwari
Plaintiff
Igoki Mutethia Farmers Coo-p Society
Defendant
Japhet Karuma
Defendant
Zipporah Muchioki
Defendant
Procedural Posture
Land and Property 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 non-compliance by the plaintiff.
- 2 Whether the defendants have complied with court orders regarding pre-trial procedures.
- 3 Whether the death of a party and consolidation of related matters justify delay in prosecution.
Ratio Decidendi
The court found that, although the matter is old and there has been delay, the plaintiff has demonstrated some compliance by filing documents and a witness statement. The court also noted that the defendants themselves had not complied with pre-trial requirements and that the death of the 2nd defendant, as well as the consolidation of related matters, contributed to the delay. In light of the complexity of the case and the involvement of claims and counterclaims, the court exercised its discretion not to dismiss the suit. Instead, the court directed that the matter be given priority for hearing and granted the parties one final opportunity to comply with pre-trial requirements before a...
Court Disposition
application for dismissal denied; suit to proceed
Orders
- The suit is not dismissed for want of prosecution.
- The matter shall be heard on a priority basis.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO 5 OF 1990
MARIA KONARIO M’ITWAMWARI.................................................PLAINTIFF
VERSUS
IGOKI MUTETHIA FARMERS COO-P SOCIETY................1ST DEFENDANT
JAPHET KARUMA.....................................................................2ND DEFENDANT
ZIPPORAH MUCHIOKI............................................................3RD DEFENDANT
RULING
1. This court has been urged to dismiss this suit by defendants on account of non - compliance by the plaintiff. I note that the matter is very old, (filed in 1990). The matter was even listed for notice to show cause but in a ruling delivered by Judge Njoroge on 30. 10. 2014, the court ordered the parties to fully comply with order II within 90 days and to set the suit down for hearing within 45 days (after achievement of compliance).
2. I have seen plaintiff’s list of documents filed on 26. 3.2015 along with statement of one witness. Whether defence side was served with these documents is another issue all together.
3. I have not seen any compliance on part of defendants in case No. 5 of 1990. I note that 2nd defendant apparently died and this may have caused the matter to stall.
4. Also the consolidation of the lower court matters (CMCC No. 603/10 and 103/09) appear to have derailed the matter further.
5. Considering the complexity of the matter occasioned by claims and counter claims as well as the death of the primary parties, I am reluctant to dismiss the suit. I however direct that the matter be heard on priority basis. The court will give parties one more chance to comply before setting a date for hearing.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 9th MAY, 2018 IN THE PRESENCE OF:-
Court Assistant: Janet/Galgalo
Ogeno for defendant
E.G Mwangi for defendant absent
All other parties absent
HON. LUCY. N. MBUGUA
ELC JUDGE