[2018] KEELC 957 (KLR)
The court found that the plaintiff had not taken any step to prosecute the suit since it was filed in August 2013, including failing to prosecute an application for injunction. The application for dismissal was unopposed. The court held that this was a fit and proper case for dismissal for want of prosecution under...
Source-derived case information.
- Citation
- [2018] KEELC 957 (KLR)
- Parties
- Plaintiff: Miriam Wangui Ngachu; Defendant: Julius Ndung’u Thangwa; Defendant: Nancy Nyambura; Defendant: Alex Njuguna Ndung’u; Defendant: Naivasha District Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 498 of 2013
- Procedural Posture
- Land and Environment Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution. Each party to bear own costs.
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Discretion, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miriam Wangui Ngachu
Plaintiff
Julius Ndung’u Thangwa
Defendant
Nancy Nyambura
Defendant
Alex Njuguna Ndung’u
Defendant
Naivasha District Land Registrar
Defendant
Procedural Posture
Land and Environment Case / 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 of the Civil Procedure Rules.
- 2 Whether costs should be awarded to the applicants upon dismissal of the suit.
Ratio Decidendi
The court found that the plaintiff had not taken any step to prosecute the suit since it was filed in August 2013, including failing to prosecute an application for injunction. The application for dismissal was unopposed. The court held that this was a fit and proper case for dismissal for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules. Regarding costs, the court exercised its discretion not to award costs to avoid further straining family relationships, as the dispute involved close family members. The suit was therefore dismissed for want of prosecution, with each party to bear their own costs.
Court Disposition
Suit dismissed for want of prosecution. Each party to bear own costs.
Orders
- The suit is dismissed for want of prosecution.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
CASE No. 498 OF 2013
MIRIAM WANGUI NGACHU........................................PLAINTIFF
VERSUS
JULIUS NDUNG’U THANGWA............................1ST DEFENDANT
NANCY NYAMBURA............................................2ND DEFENDANT
ALEX NJUGUNA NDUNG’U.............................. 3RD DEFENDANT
NAIVASHA DISTRICT LAND REGISTRAR....4TH DEFENDANT
RULING
1. By Notice of Motion dated 31st May 2017, the 2nd and 3rd defendants seek dismissal of this suit with costs for want of prosecution. The application was supported by an affidavit sworn by Joseph Karanja Mbugua, advocate. He deposed that despite filing this suit way back on 8th August 2013, the plaintiff has failed to prosecute it. He therefore urged the court to dismiss it.
2. Though served her advocates on record, the defendant neither filed anything in response to the application nor attended its hearing.
3. I have considered the application which is essentially unopposed. It was brought under Order 17 rule 2 of the Civil Procedure Rules provides:
2. (1) 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.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
4. Upon perusing the record herein, I note that indeed, the plaintiff has not taken any step to prosecute the suit since it was filed on 14th August 2013. Even Notice of Motion dated 8th August 2013 which the plaintiff filed under Certificate of Urgency seeking an injunction remains unprosecuted. In the circumstances, I find that this is a fit and proper case in which an order for dismissal for want of prosecution should issue.
5. The applicants have urged the court to award them costs. Costs generally follow the event unless the court orders otherwise. At the end of the day, costs are at the discretion of the court. Needless to state, discretion must be exercised judiciously. I note upon perusal of the plaint that the plaintiff stated that the 2nd defendant and her were married to the 1st defendant under Kikuyu Customary Law. The 3rd defendant is the son of the 1st and 2nd defendants. In essence therefore, the suit pits close family members against each other. So as not to fray family bonds any further and so as to avoid creating a new point of friction within the family, I will not award any costs.
6. In the end, I dismiss this suit for want of prosecution. Each party to bear own costs.
Dated, signed and delivered in open court at Nakuru this 30th day of October 2018.
D. O. OHUNGO
JUDGE
In the presence of:
Mr Karanja for the 2nd & 3rd defendants/applicants
No appearance for the plaintiff/respondent
No appearance for the 1st defendant
Court Assistants: Gichaba & Lotkomoi