[2020] KEELC 3127 (KLR)
The court found that the plaintiff failed to provide a reasonable explanation for the four-year delay in prosecuting the suit, holding that the negligence of her former advocates was not a sufficient ground for reinstatement since the plaintiff had a duty to follow up on her case. However, the court noted that the...
Source-derived case information.
- Citation
- [2020] KEELC 3127 (KLR)
- Parties
- Plaintiff: Mary Wairimu Peter Ngaari; Defendant: Pan African Properties & Investments Limited; Defendant: Francis Ngugi Waweru; Defendant: Serah Nyambura Wairumbi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 123 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed in terms of prayers 2 and 5; suit reinstated; costs in the cause.
- Legal Topics
- Reinstatement of Suit, Want of Prosecution, Injunctive Relief, Land Ownership Disputes
- 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
Mary Wairimu Peter Ngaari
Plaintiff
Pan African Properties & Investments Limited
Defendant
Francis Ngugi Waweru
Defendant
Serah Nyambura Wairumbi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the plaintiff has provided sufficient reason to set aside the order dismissing the suit for want of prosecution.
- 2 Whether the plaintiff is entitled to an injunction restraining the defendants from interfering with the suit properties pending determination of the suit.
- 3 Whether the proceedings before the Chief of Ngecha Location should be stayed.
Ratio Decidendi
The court found that the plaintiff failed to provide a reasonable explanation for the four-year delay in prosecuting the suit, holding that the negligence of her former advocates was not a sufficient ground for reinstatement since the plaintiff had a duty to follow up on her case. However, the court noted that the application was unopposed and that the defendants would not suffer prejudice if the application was allowed. On this basis alone, the court exercised its discretion to allow the application in terms of prayers 2 and 5, effectively reinstating the suit and granting the requested reliefs, with costs in the cause.
Court Disposition
Application allowed in terms of prayers 2 and 5; suit reinstated; costs in the cause.
Orders
- The order dismissing the suit for want of prosecution is set aside and the suit is reinstated.
- An injunction is granted restraining the defendants from trespassing on, alienating, or interfering with the plaintiff’s possession of Limuru/Ngecha/2064 and Limuru/Ngecha/2065 pending determination of the suit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC SUIT NO. 123 OF 2010
MARY WAIRIMU PETER NGAARI......................PLAINTIFF
VERSUS
PAN AFRICAN PROPERTIES &
INVESTIMENTS LIMITED..........................1ST DEFENDANT
FRANCIS NGUGI WAWERU.......................2ND DEFENDANT
SERAH NYAMBURA WAIRUMBI..............3RD DEFENDANT
RULING
This suit was dismissed on 16th March, 2015 for want of prosecution. By the time the suit was being dismissed, it had remained dormant for over 4 years. What is now before me is an application brought by the plaintiff by way of a Notice of Motion dated 9th June, 2015 seeking the setting aside the said order of dismissal and the reinstatement of the suit. The plaintiff has also sought an injunction restraining the defendants from trespassing on, alienating or in any other way interfering with the plaintiff’s possession of all those parcels of land known as Limuru/Ngecha/2064 and Limuru/Ngecha/2065 (“the suit properties”) pending the hearing and determination of the suit and in the alternative, an order that the status quo be maintained in respect of possession and occupation the suit properties pending the hearing and determination of the suit. The plaintiff has sought a further order that the proceedings that the defendants had instituted against her before the Chief of Ngecha Location be stayed.
The application was brought on the grounds that the plaintiff’s failure to prosecute the suit was inadvertent and that it was occasioned by the negligence of the plaintiff’s previous advocates. The plaintiff averred that the mistake of her previous advocates should not be visited upon her. The plaintiff averred further that she had occupied the suit properties with her family since 1999 and was still in occupation thereof. The plaintiff averred that the 2nd defendant had fraudulently acquired and transferred one of the suit properties namely, Limuru/Ngecha/2064 to the 3rd defendant who had obtained an illegal title in respect thereof.
The plaintiff averred that the defendants had attempted to evict her from the suit properties and that they would proceed to do so unless restrained by the court. The plaintiff averred that in their effort to evict her from the suit properties, the defendants had enlisted the services of the chief of Ngecha Location to harass and intimidate her through unnecessary summons. The plaintiff averred that she would suffer irreparable loss if the orders sought were not granted.
The plaintiff’s application was not opposed by any of the defendants. When the application came up for hearing on 27th February, 2020, only the plaintiff’s advocate attended court. The advocates for the defendants did not appear in court despite service having been effected upon them. Mr. Alekin who appeared for the plaintiff urged the court to allow the application as prayed since the same was not opposed.
I have considered the application together with the affidavit filed in support thereof. I am of the view that the plaintiff has not given reasonable explanation why she failed to prosecute this suit for a period of over 4 years before the same was dismissed on 16th March, 2015. I am of the view that the fact that the plaintiff’s former advocates were negligent in the performance of their duties to her is not a sufficient ground to warrant an exercise of the courts discretion in her favour. The case belonged to plaintiff and as such she had a responsibility to follow up the same with her said former advocates. If she had done that, I believe that she would have noted much earlier that no action was being taken in the matter and would have taken steps to remedy the situation.
For the foregoing reasons, I find no merit in the plaintiff’s application. I have noted however that the application was not opposed. This means that the defendants are not likely suffer any prejudice if the application is allowed. For that reason alone, I will allow the application dated 9th June,2015 in terms of prayers 2 and 5 thereof. The costs of the application shall be in the cause.
Delivered and Dated at Nairobi this 2nd Day of March, 2020
S. OKONG’O
JUDGE
Ruling read in open court in the presence of:
Mr. Alekin h/b for Ms. Ratemo for the Plaintiff
Ms. Njogu h/b for Mr. Anyoka for the Defendants
Ms. C. Nyokabi-Court Assistant