[2018] KEELC 1893 (KLR)
The court found that the last action in the matter was on 30.11.2015, and no further steps were taken by the plaintiffs for approximately 23 months. The reasons advanced by the plaintiffs, including alleged negotiations and changes in legal representation, were not substantiated, as the defendant denied any ongoing...
Source-derived case information.
- Citation
- [2018] KEELC 1893 (KLR)
- Parties
- Plaintiff: Nicholas Inziano Mugaizi; Plaintiff: Catharine Nyangasi; Defendant: Kenya Industrial Estates
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 267 of 2013
- Procedural Posture
- Land and Property Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- A Ombwayo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Out of Court Settlement, Laches
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Inziano Mugaizi
Plaintiff
Catharine Nyangasi
Plaintiff
Kenya Industrial Estates
Defendant
Procedural Posture
Land and Property Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiffs' suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the reasons advanced by the plaintiffs for the delay are sufficient to prevent dismissal.
Ratio Decidendi
The court found that the last action in the matter was on 30.11.2015, and no further steps were taken by the plaintiffs for approximately 23 months. The reasons advanced by the plaintiffs, including alleged negotiations and changes in legal representation, were not substantiated, as the defendant denied any ongoing negotiations and the last correspondence was over a year prior to the application for dismissal. The court held that the delay was inordinate and inexcusable, amounting to laches on the part of the plaintiffs. Consequently, the suit was dismissed for want of prosecution, with costs awarded to the defendant.
Court Disposition
suit dismissed for want of prosecution
Orders
- The plaintiffs' suit is dismissed for want of prosecution.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 267 OF 2013
NICHOLAS INZIANO MUGAIZI..........1ST PLAINTIFF
CATHARINE NYANGASI.......................2ND PLAINTIFF
VERSUS
KENYA INDUSTRIAL ESTATES..............DEFENDANT
RULING
The application herein is dated 14. 12. 2017 and seeks orders that the plaintiffs’ suit be dismissed for want of prosecution. The defendant states the plaintiffs’ suit was filed on 25. 3.2013. The plaintiffs have not taken any action for over 2 years. The plaintiffs have not taken a hearing date or moved the court appropriately. The plaintiffs state that there are culpable inordinate and flagrant delays in prosecuting the matter. In the interest of justice, the matter should come to an end according to the plaintiffs.
In the replying affidavit, the plaintiff, Nicholas Inziano Mugaizi states that he was first represented by M/s Cheluget & Company Advocates until 25. 4.2013 when he filed a notice to act in person.
On 8. 10. 2015, he decided to act in person when he learnt that his advocate had become the speaker of the County Assembly, Elgeyo Marakwet. He took a step and acted in person and engaged the defendant in A.D.R. He later appointed the firm of Esikuri to act on his behalf. He waited for Mr. Esikuri to notify him of a hearing date but to no avail. He continued to engage the defendant in settlement. He paid the full principle debt and was issued with a discharge and clearance certificate. He engaged the respondent for out of court settlement and discharge of title deed. However, he received further notices seeking for payment. He has constantly engaged the defendant for payment and settlement out of court. He lost touch with his legal representatives but now has Kagunza & Associates who are willing to move with speed.
I have considered the application and the supporting affidavit, replying affidavit and do find that this matter was last in court on 30. 11. 2015 before the filing of this application. On the said date, Mr. Langat informed the court that there was no settlement and therefore, the matter was referred back to the registry.
From that date, no action has been taken by the plaintiff. A delay of about 23 months is inordinate. The reasons given for the delay are that parties have been negotiating, however, Mr. Langat denied that there were any negotiations. The last letter written by Esikuri & Company Advocates was dated 26. 5.2016 addressed to K.I.E. After the letter, the plaintiff went to sleep and was woken up by the defendant more than 12 months later with the application for dismissal for want of prosecution. I do find that the plaintiff is guilty of laches and the suit herein is dismissed for want of prosecution. Costs to the defendant.
Dated, signed and delivered at Eldoret this 30th day of July, 2018.
A. OMBWAYO
JUDGE