[2016] KEELC 1162 (KLR)
The court found that the Plaintiff had not taken any steps to prosecute the suit or the pending application for over seven years since filing the Reply and Defence to Counterclaim. The court held that this prolonged inaction was sufficient evidence that the Plaintiff had abandoned the suit. Applying Order 17 Rule...
Source-derived case information.
- Citation
- [2016] KEELC 1162 (KLR)
- Parties
- Plaintiff: Mark Oduor; Defendant: Julius Wanjau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case of 20 of 2008
- Procedural Posture
- Notice of Motion / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application allowed. Suit dismissed for want of prosecution with costs to the Defendant. Defendant at liberty to set down Counterclaim for hearing.
- Judges
- MM Gitumbi
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Injunctive Relief, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Oduor
Plaintiff
Julius Wanjau
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules, 2010.
- 2 Whether the Plaintiff has abandoned the suit by failing to take steps for over seven years.
Ratio Decidendi
The court found that the Plaintiff had not taken any steps to prosecute the suit or the pending application for over seven years since filing the Reply and Defence to Counterclaim. The court held that this prolonged inaction was sufficient evidence that the Plaintiff had abandoned the suit. Applying Order 17 Rule 2(1) and (3) of the Civil Procedure Rules, 2010, the court concluded that the Defendant's application for dismissal for want of prosecution was merited. The court allowed the application with costs to the Defendant and granted the Defendant liberty to set down his Counterclaim for hearing.
Court Disposition
Application allowed. Suit dismissed for want of prosecution with costs to the Defendant. Defendant at liberty to set down Counterclaim for hearing.
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the Defendant/Applicant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ENVIRONMENTAL AND LAND DIVISION
ELC. CASE NO. 3 OF 2008
MARK ODUOR.................................................PLAINTIFF
VERSUS
JULIUS WANJAU........................................DEFENDANT
RULING
Coming up before me for determination is the Notice of Motion dated 25th March 2013 in which the Defendant seeks for this suit to be dismissed for want of prosecution and for costs to be provided for.
The Application is premised on the grounds set out on its face as well as the Supporting Affidavit of the Defendant/Applicant sworn on 25th March 2013 in which he averred that a period of over twelve months had elapsed since this matter was last in court which is an indication that the Plaintiff in no longer interested in prosecuting this suit.
The Application is not contested despite the Plaintiff being duly served. The Defendant/Applicant filed his submissions.
The applicable law is Order 17 Rule 2(1) of the Civil Procedure Rules, 2010 which provides as follows:
“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”
Order 17 Rule 2(3) provides as follows:
“Any party to the suit may apply for its dismissal as provided in sub-rule 1”
I have carefully studied the proceedings of this suit. I have noticed that this suit was filed on 10th January 2008 wherein the Plaintiff sought, inter alia, for a declaration that he is the lawful owner of the parcel of land known as Plot No. 56 being part of LR. No. 14235 Kasarani, Nairobi (hereinafter referred to as the “suit property”). At the same time, the Plaintiff filed his Chamber Summons seeking, inter alia, for orders that the Defendant be restrained by way of a temporary injunction from putting up any building, house, fence or any other structure whatsoever on the suit property. This order was granted ex parte by Lady Justice Lesiit on 10th January 2008. That order remains in force from that date up to date yet the Chamber Summons has never been set down for hearing. The Defendant has since filed a Statement of Defence and Counterclaim to which the Plaintiff filed his Reply and Defence to Counterclaim on 31st July 2008. Since then up to date, a period of over 7 years the Plaintiff has not prosecuted either his pending application or even the main suit.
A period in excess of 7 years having lapsed without the Plaintiff taking any action in this suit more than confirms to me that the Plaintiff has abandoned this suit and I find no difficulty in allowing this Application, which I hereby do, with costs to the Defendant/Applicant. The Defendant is now at liberty to set down his Counterclaim for hearing.
It is so ordered.
DELIVERED AND SIGNED AT NAIROBI THIS 29TH DAY OF JANUARY 2016.
MARY M. GITUMBI
JUDGE