[2016] KEHC 2789 (KLR)
The court found that although there was a significant period of inactivity between 29th July 2013 and 10th February 2016, the plaintiff had demonstrated a genuine and uncontroverted willingness to prosecute the case, including compliance with Order 11 of the Civil Procedure Rules. The court was not persuaded by the...
Source-derived case information.
- Citation
- [2016] KEHC 2789 (KLR)
- Parties
- Plaintiff: M'Lintari Wa Machura; Defendant: M'Igandura M'Nabea Karunya; Defendant: Land Adjudication Officer Tigania Districts; Defendant: Hon The Attorney General
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 122 of 2013
- Procedural Posture
- Environment and Land Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; matter to proceed.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Order 17 Civil Procedure Rules, Adjournment of Proceedings, Compliance With Order 11, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M'Lintari Wa Machura
Plaintiff
M'Igandura M'Nabea Karunya
Defendant
Land Adjudication Officer Tigania Districts
Defendant
Hon The Attorney General
Defendant
Procedural Posture
Environment and Land Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 of the Civil Procedure Rules, 2010.
- 2 Whether the plaintiff has demonstrated sufficient cause to prevent dismissal of the suit.
- 3 Whether the notice to show cause was issued prematurely.
Ratio Decidendi
The court found that although there was a significant period of inactivity between 29th July 2013 and 10th February 2016, the plaintiff had demonstrated a genuine and uncontroverted willingness to prosecute the case, including compliance with Order 11 of the Civil Procedure Rules. The court was not persuaded by the argument that the notice to show cause was premature, as the record clearly showed the delay. However, given the plaintiff's readiness and the absence of any substantive opposition to continuation, the court exercised its discretion not to dismiss the suit for want of prosecution.
Court Disposition
Suit not dismissed; matter to proceed.
Orders
- The suit is not dismissed for want of prosecution.
- Parties to proceed with the prosecution of the suit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ENVIRONMENT AND LAND CASE NO. 122 OF 2013
M'LINTARI WA MACHURA …...............................................................PLAINTIFF
VERSUS
M'IGANDURA M'NABEA KARUNYA.........................................1ST DEFENDANT
LAND ADJUDICATION OFFICER TIGANIA DISTRICTS........2 ND DEFENDANT
HON THE ATTORNEY GENERAL …........................................3RD DEFENDANT
R U L I N G
1. The Court directed the parties to come to Court on 30/08/2016 to show cause why this suit should not be dismissed for want of prosecution in terms of Order 17 of the Civil Procedure Rules, 2010.
2. The Court had noted that since 29th July, 2013 no step had been taken until 10th February, 2016.
3. Mr. Mwanzia holding brief for Mr. Rimita for the Plaintiff urged this Court not to dismiss the suit because the Plaintiff had fully complied with Order 11, CPR and was willing to prosecute his case immediately.
4. Mr. Kimathi for the 2nd and 3rd Defendants told the Court that he was not aware that the matter was coming up in Court. He asked the Court to adjourn the matter in view of the fact that the 1st Defendant was not represented.
5. I do note that Mr. Kimathi for the 2nd and 3rd Defendants was in Court on 31/05/2016 when the parties were directed to come to Court to show cause why this suit should not be dismissed for want of prosecution. He, indeed, participated during that day's proceedings.
6. I disagree with the submission by the Plaintiff's Advocate that the Notice to Show Cause why this suit should not be dismissed for want of prosecution was issued prematurely. The Court record is pellucid that no step was taken between 29th July,2013 and 10th February, 2016. Nevertheless, the Plaintiff has demonstrated his earnest and uncontroverted desire to prosecute his case.
7. I do find that the Plaintiff has shown to the satisfaction of this Court that this suit should not be dismissed. In the Circumstances, this suit is not dismissed.
8. It is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 31ST DAY OF AUGUST , 2016 IN THE PRESENCE OF:-
CC: Lilian/Daniel
Rimita for Plaintiff
Defendants not in Court
P. M NJOROGE
JUDGE