[2025] KEELC 1222 (KLR)

Muganga & 156 others v Sherman & 194 others (Enviromental and Land Originating Summons E013 of 2023) [2025] KEELC 1222 (KLR) (12 March 2025) (Ruling)

Neutral citation: [2025] KEELC 1222 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Enviromental and Land Originating Summons E013 of 2023

FM Njoroge, J

March 12, 2025

Between

Alfred Katana Muganga

1st Plaintiff

Omar Kenga Bendera

2nd Plaintiff

Kalstus Charo Fundi

3rd Plaintiff

Joseph Tonga Katana

4th Plaintiff

Kahindi Tonga Katana

5th Plaintiff

Kahindi Fondo Kunde Katana Chengo

6th Plaintiff

Shaban M. Salim & 150 others

7th Plaintiff

and

Said Saleh Sherman

1st Defendant

Abdulla Ahmed Qahthwan

2nd Defendant

Stima Investment Cooperative Society Ltd

3rd Defendant

County Council of Kilifi

4th Defendant

Stephen Githinji Matiri & 190 others

5th Defendant

Ruling

1. The 3rd Defendant moved the court vide a notice of motion application dated 15/8/2024 seeking the following orders: -1. That the suit against the 3rd Defendant herein be dismissed with costs for want of prosecution;2. That the costs of this application and the entire suit be awarded to the 3rd Defendant.

2. The application is based on the grounds that the Plaintiffs have neglected and/or otherwise failed to set down the suit for hearing and that since the filing of this suit on 14/6/2023, the Plaintiffs have never taken any steps to prosecute the same. In support of the application is an affidavit sworn by Damaris Mutile, the 3rd defendant’s Legal Officer, on an even date.

3. The application was served via email upon the Plaintiffs’ counsel, Ambwere T.S & Associates. There is however no reply to the motion on the C.T.S. The application was heard by way of written submissions. Notably, on 20/2/2025 when the matter was mentioned before this court, Ms. Mdesia holding brief for Mr. Bwire, counsel for the 3rd Defendant, told the court that submissions to the present application had been filed on that same day. I have keenly perused the record on C.T.S, the only submissions filed on that day were in relation to another application dated 19/12/2024.

4. In its handling of an application in which there has been failure to file submissions in support, the court may either dismiss the application or grant it or make any other orders. The flexibility of the court in making orders in those circumstances will depend on the nature of the application before it. In an application seeking orders which the court would have granted suo moto such as an application for dismissal for want of prosecution, the court may proceed to handle the application even in the absence of any submissions filed by the applicant.

5. In the present case the grant of the orders prayed for depend simply on whether Order 17 Rule 2(3) has been satisfied. That order 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.”

6. In this case, the court never issued notice but the present application is sufficient notice under Order 17 Rule (3) which provides as follows:“3. Any party to the suit may apply for its dismissal as provided in sub-rule 1. ”

7. The criteria for a dismissal of a suit under order 17 rule 2(3) are the same as those under Order 17 Rule (2) (1) only that the initiators or the dismissal proceedings are different. The criteria is whether any application has been made or step taken by either party for one year. This court shall establish whether that is the case.

8. The averment made in the supporting affidavit to the motion is that upon perusal the advocates for the applicant have established that the matter has never been mentioned in court since it was filed on 14/6/2023. The deposition of this fact was made on 15/8/2024.

9. This court is of the view that the action considered as capable from redeeming a suit from dismissal under the foregoing provisions of the CPR is not limited to listing a matter for hearing or mention. It includes any other step or application made to further the progress of the suit.

10. The suit herein was filed on 14th June 2023. Ambwere & Associates filed an application for substituted service on 14/1/2023. Memorandum of appearance was filed by Bwire & Associates on 19/7/2023. A replying affidavit was filed by the same firm of advocates on 6/9/2023, then the present application followed on 22/10/2024.

11. Between 6/9/23 and 22/10/24 is a period of more than the one year provided for in Order 17 Rule 2. The present application therefore has merit and I therefore make the following orders:a. The entire suit is hereby dismissed for want of prosecution;b. The costs of the suit and the application are hereby awarded to the 3rd defendant only.

DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 12TH DAY OF MARCH 2025. MWANGI NJOROGEJUDGE, ELC, MALINDI