[2021] KEELC 1287 (KLR)
The court found that the plaintiff failed to provide a plausible explanation for the delay in prosecuting the suit and did not demonstrate sufficient interest to warrant the exercise of judicial discretion in her favour. The court noted that the plaintiff was served with the application for dismissal by...
Source-derived case information.
- Citation
- [2021] KEELC 1287 (KLR)
- Parties
- Applicant: Naomi Wangui Kuria; Respondent: Harrison Karanja Njihia; Respondent: Onesmus Gachuhi Githinji; Respondent: Attorney General; Respondent: Githunguri Constituency Ranching Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 341 of 2012
- Procedural Posture
- Notice of Motion / Ruling on Application to Reinstate Suit and Transfer Venue
- Outcome
- application dismissed with costs to the 2nd defendant
- Judges
- LC Komingoi
- Legal Topics
- Dismissal for Non Prosecution, Reinstatement of Suit, Transfer of Suit, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naomi Wangui Kuria
Applicant
Harrison Karanja Njihia
Respondent
Onesmus Gachuhi Githinji
Respondent
Attorney General
Respondent
Githunguri Constituency Ranching Company Limited
Respondent
Procedural Posture
Notice of Motion / Ruling on Application to Reinstate Suit and Transfer Venue
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for non-prosecution.
- 2 Whether the suit should be transferred to the Thika High Court, Environment and Land Court Division.
Ratio Decidendi
The court found that the plaintiff failed to provide a plausible explanation for the delay in prosecuting the suit and did not demonstrate sufficient interest to warrant the exercise of judicial discretion in her favour. The court noted that the plaintiff was served with the application for dismissal by advertisement and failed to attend court to defend the application. Consequently, the court held that there was no merit in the application for reinstatement or for transfer of the suit, and dismissed the application with costs to the 2nd defendant.
Court Disposition
application dismissed with costs to the 2nd defendant
Orders
- The application to reinstate the suit is dismissed.
- The application to transfer the suit to Thika High Court ELC Division is dismissed.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 341 OF 2013
NAOMI WANGUI KURIA....................................................PLAINTIFF/APPLICANT
=VERSUS=
HARRISON KARANJA NJIHIA.............................1ST DEFENDANT/RESPONDENT
ONESMUS GACHUHI GITHINJI.........................2ND DEFENDANT/RESPONDENT
ATTORNEY GENERAL............................................3RD DEFNDANT/RESPONDENT
GITHUNGURI CONSTITUENCY RANCHING
COMPANY LIMITED............................................4TH DEFENDANT/RESPONDENT
RULING
1. This is the Notice of Motion dated 13th April 2021 brought under Section 1A, 1B and 3A of the Civil Procedure Act, Order 12 Rule 7 of the Civil Procedure Rules 2010 and all enabling provisions of the law.
2. It seeks orders:-
1. That this honourable court be pleased and do reinstate the suit herein being ELC Case Number 341 of 2013 for hearing which was dismissed for non-prosecution on 10th March 2021.
2. That this honourable court be pleased to transfer this suit to the Thika High Court, Environment and Land Court (ELC) Division being the proper, and appropriate court with jurisdiction for fair, expeditious and timous final hearing and determination and disposal.
3. The Application is supported by the affidavit of Naomi Wambui Kuria, sworn on the 13th April 2021.
4. The application is opposed. There is a Replying Affidavit sworn by Onesmus Gachuhi Githinji the 2nd Defendant/Respondent sworn on the 9th June 2021.
5. I have considered the Notice of Motion and the affidavit in support. I have also considered the Replying Affidavit and the annexures, the oral submissions of counsel. The issue for determination is whether this application is merited.
6. I have gone through the court record. It appears the plaintiff was last represented in court on 11th December 2019. Mrs. Njiru then informed the court that she had since ceased acting for the plaintiff.
7. Owing to the plaintiff’s lack of interest in prosecuting this case, the 2nd defendant filed an application to dismiss the suit for want of prosecution dated 7th November 2019. The plaintiff was served with the said application by way of advertisement through The Standard Newspapers.
8. On the 10th March 2021 the plaintiff neglected to attend court to defend the said application. The same was allowed.
9. I have gone through the supporting affidavit of the plaintiff. I find no plausible explanation to explain the delay in prosecuting this suit.
10. The plaintiff has failed to persuade this court that it should exercise discretion in her favour.
11. I find no merit in this application and the same is dismissed with costs to the 2nd Defendant.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI ON THIS 21ST DAY OF OCTOBER 2021.
…………………
L. KOMINGOI
JUDGE
In the presence of:-
No appearance for the Plaintiff
No appearance for the 1st Defendant
Ms Kalaine for the 2nd Defendant
No appearance for the 3rd and 4th Defendants
Steve - Court Assistant