[2015] KEELC 273 (KLR)
The court found that the plaintiffs had not taken any steps to prosecute the suit for over a year since their application for injunction was dismissed for want of prosecution. The explanation provided by the plaintiffs for the delay—waiting for documents from the defendant's advocate—was deemed not plausible....
Source-derived case information.
- Citation
- [2015] KEELC 273 (KLR)
- Parties
- Plaintiff: Maurine Akinyi Maloba; Plaintiff: Linet Pesa Maloba; Defendant: Abbas Abubakar Alwi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 120 of 2013
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application partially allowed; suit not dismissed but plaintiffs given final opportunity to prosecute; costs awarded to defendant.
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Land Disputes, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurine Akinyi Maloba
Plaintiff
Linet Pesa Maloba
Plaintiff
Abbas Abubakar Alwi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiffs' delay in prosecuting the matter.
- 2 Whether the plaintiffs have provided a plausible explanation for the delay in prosecuting the suit.
- 3 Whether the defendant is entitled to costs of the application.
Ratio Decidendi
The court found that the plaintiffs had not taken any steps to prosecute the suit for over a year since their application for injunction was dismissed for want of prosecution. The explanation provided by the plaintiffs for the delay—waiting for documents from the defendant's advocate—was deemed not plausible. However, recognizing the emotive nature of land disputes in Kenya, the court exercised its discretion to grant the plaintiffs a final opportunity to prosecute their suit. The court ordered the plaintiffs to fix the matter for hearing within ninety days (excluding court vacation days) from the date of the ruling, failing which the suit would stand dismissed with costs. The plaintiffs...
Court Disposition
Application partially allowed; suit not dismissed but plaintiffs given final opportunity to prosecute; costs awarded to defendant.
Orders
- Plaintiffs to fix the matter for hearing within ninety (90) days, excluding court vacation days, from the date of the ruling.
- If the plaintiffs fail to fix the matter for hearing within the stipulated period, the suit shall stand dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.120 OF 2013
1. MAURINE AKINYI MALOBA
2. LINET PESA MALOBA............................PLAINTIFFS/RESPONDENTS
=VERSUS=
ABBAS ABUBAKAR ALWI...............................DEFENDANT/APPLICANT
R U L I N G
What is before me is the Application by the Defendant dated 29th October 2014 seeking for the following orders:
(a) That this suit be dismissed for want of prosecution.
(b) That the costs of the suit be awarded to the Defendant
The Application is premised on the grounds that since the suit was filed in the year 2013, the Plaintiffs have not prosecuted the suit; that the Plaintiffs have lost interest in the suit and that the prolonged existence of the suit is prejudicial to the Defendant.
In her reply, the 1st Plaintiff deponed that it is not true that she lost interest in the suit; that she has been struggling to get crucial documents in their original form from the Defendant's advocate and that they have now received the documents and are ready to prosecute the suit.
The parties' advocates filed written submissions which I have considered. I have also considered the authorities on record.
The last time this matter came up was on 20th November 2013 when this court dismissed the Plaintiffs' Application for injunction for want of prosecution. Since then, the Plaintiffs did not fix the matter for hearing.
Indeed, by the time this Application was filed by the Defendant, the matter had been in court for more than one (1) year.
The reasons given by the Plaintiffs that they were waiting to receive crucial documents from the Defendant's advocate are not plausible.
However, considering that this is a land matter, which is generally an emotive issue in this country, I shall grant to the Plaintiffs the last opportunity to prosecute their suit.
In the circumstances, I direct that the Plaintiffs fix the matter for hearing within ninety (90) days, excluding the days the court shall be on vacation from the date of this Ruling and if not, this matter shall stand dismissed with costs.
The Plaintiffs shall bear the costs of the Application.
Dated and delivered in Malindi this 11th day of September2015.
O. A. Angote
Judge