[2018] KEELC 3586 (KLR)
The court found that the Plaintiffs failed to provide a satisfactory explanation for the four-year delay in prosecuting the suit. The assertion that their previous advocates were not served with the Notice of Dismissal was unsupported, as no affidavit from the advocates themselves was provided. The Plaintiffs'...
Source-derived case information.
- Citation
- [2018] KEELC 3586 (KLR)
- Parties
- Applicant: Nancy Kamene Maingi; Applicant: Zilpah Monyangi Achoki; Respondent: Teresiah K. Mutuku; Respondent: Pauline M. Peter; Respondent: Elizabeth K. Mutha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 16 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- application dismissed; suit stands dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Notice, Advocate Change, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Kamene Maingi
Applicant
Zilpah Monyangi Achoki
Applicant
Teresiah K. Mutuku
Respondent
Pauline M. Peter
Respondent
Elizabeth K. Mutha
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the Plaintiffs have provided sufficient reason to set aside the order of dismissal for want of prosecution.
- 2 Whether the Plaintiffs' advocates were properly served with the Notice of Dismissal.
- 3 Whether the Plaintiffs' explanation for the delay in prosecuting the suit is adequate.
Ratio Decidendi
The court found that the Plaintiffs failed to provide a satisfactory explanation for the four-year delay in prosecuting the suit. The assertion that their previous advocates were not served with the Notice of Dismissal was unsupported, as no affidavit from the advocates themselves was provided. The Plaintiffs' explanation of a strained relationship with their former advocates was deemed insufficient, as they did not take steps to instruct new counsel or move the matter forward. Consequently, the court held that no good reason had been shown to set aside the dismissal, and the application was unmeritorious.
Court Disposition
application dismissed; suit stands dismissed
Orders
- The Application dated 23rd October, 2017 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 16 OF 2011
NANCY KAMENE MAINGI................1ST PLAINTIFF/APPLICANT
ZILPAH MONYANGI ACHOKI.........2ND PLAINTIFF/APPLICANT
VERSUS
TERESIAH K. MUTUKU...............1ST DEFENDANT/RESPONDENT
PAULINE M. PETER......................2ND DEFENDANT/RESPONDENT
ELIZABETH K. MUTHA ..............3RD DEFENDANT/RESPONDENT
RULING
1. In the Application dated 23rd October, 2017, the Plaintiffs are seeking for the following orders:
a. That the firm of Aunga Omwenga & Company advocates be allowed to come on record for the Plaintiffs/Applicants in replacement of Kamolo & Associates Advocates.
b. That this Honourable Court be pleased to set aside its order of dismissal of the Plaintiffs’ suit issued on the 16th June, 2017 and reinstate the same for hearing and determination on merit.
c. That costs of this Application be in the cause.
2. In support of the Application, the 1st Plaintiff has deponed that the suit was dismissed by the court for want of prosecution; that the dismissal Notice of 24th April, 2017 was never served on the firm of Kamolo & Associates advocates and that the dismissal date was varied from 9th June, 2017 to 16th June, 2017 by the Deputy Registrar but the firm of Kamolo was not aware of the change in dates.
3. According to the 1st Plaintiff, the suit remained unprosecuted due to the restrained relationship between the Plaintiffs and their advocates and that he was only aware of the dismissal order when his present advocate perused the court file.
4. The Defendants filed their Grounds of Opposition in which they averred that the Plaintiffs have not discharged their burden of proof by even remotely attempting to explain their non-prosecution of the matter since 11th November, 2013 when the matter was last in court.
5. The parties relied on their pleadings.
6. The record shows that on 16th June, 2017, this matter was dismissed for want of prosecution by the court pursuant to the provisions of Order 17 Rule 2(1) of the Civil Procedure Rules. The record further shows that the Notice of Dismissal was addressed to the firm of Kamolo & Associates Advocates.
7. Although the 1st Plaintiff has deponed that the firm of Kamolo & Associates Advocates was not served with the Notice of Dismissal, an advocate from the said firm has not filed an Affidavit to say so. Indeed, it is only an advocate from the firm of Kamolo & Associates Advocates who can depone to that fact and not the Plaintiffs.
8. In any event, the Plaintiffs’ explanation that the suit was not fixed for hearing for more than four (4) years because of their restrained relationship with the previous advocates confirms that they had lost interest in prosecuting the suit for the four (4) years the matter remained dormant. That is why they never instructed another advocate to take over the matter.
9. Considering that no good reason has been given as to why the suit was never prosecuted expeditiously, and in the absence of any evidence or deposition by an advocate from the firm of Kamolo & Associates Advocates that they were not aware of the Notice of Dismissal dated 24th April, 2017, I find the Application dated 23rd October, 2017 to be unmeritorious.
10. I therefore dismiss the Application dated 23rd October, 2017 with no order as to costs. This suit stands dismissed and should be filed away.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 20TH DAY OF APRIL, 2018.
O.A. ANGOTE
JUDGE