[2017] KEELC 2062 (KLR)
The court found that the suit was dismissed prematurely, as one year had not elapsed since its filing, contrary to the requirements of Order 17 Rule 2(1) of the Civil Procedure Rules. Additionally, there was no evidence that the applicants or their counsel were served with the notice of intention to dismiss. The...
Source-derived case information.
- Citation
- [2017] KEELC 2062 (KLR)
- Parties
- Applicant: Njoka Kathuni; Applicant: Rose Kagendo; Applicant: Aileen Maruta; Respondent: Mbaka Kathuni; Respondent: Justine M. Mutindwa; Respondent: Casty Kanyua Joseph
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 14 of 2017
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; dismissal order vacated and suit reinstated.
- Judges
- FM Njoroge
- Legal Topics
- Adverse Possession, Reinstatement of Suit, Dismissal for Want of Prosecution, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njoka Kathuni
Applicant
Rose Kagendo
Applicant
Aileen Maruta
Applicant
Mbaka Kathuni
Respondent
Justine M. Mutindwa
Respondent
Casty Kanyua Joseph
Respondent
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution was proper under Order 17 Rule 2(1) of the Civil Procedure Rules.
- 2 Whether the applicants were properly served with notice of intention to dismiss the suit.
- 3 Whether the suit should be reinstated in the interests of justice.
Ratio Decidendi
The court found that the suit was dismissed prematurely, as one year had not elapsed since its filing, contrary to the requirements of Order 17 Rule 2(1) of the Civil Procedure Rules. Additionally, there was no evidence that the applicants or their counsel were served with the notice of intention to dismiss. The court held that the dismissal was issued per incuriam, inadvertently and irregularly. In the interests of justice, the dismissal was vacated and the suit reinstated, with directions for compliance with pre-trial procedures and proper service of the court's orders.
Court Disposition
Application allowed; dismissal order vacated and suit reinstated.
Orders
- The dismissal order of 6th March is set aside and vacated.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
54 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 14 OF 2017 (OS)
FORMERLY MERU ELC CASE NO.18 OF 2016 (OS)
IN THE MATTER OF THE LAND REGISTRATION ACT NO. 6 OF 2012
AND
IN THE MATTER OF LAND ACT NO. 3 OF 2012
AND
IN THE MATTER OF THE LIMITATION OF ACTION ACT CAP 22
LAWS OF KENYA SECTION 7 AND 38 AND
IN THE MATTER OF AN APPLICATION BY NJOKA KATHUNI, ROSE KAGENDO
AND AILEEN MARUTA THAT THEY BE DECLARED THE PROPRIETORS OF
LAND PARCELS MAGUMONI/MWONGE/1909, MAGUMONI/MWONGE/1910 AND
MAGUMONI/MWONGE/1911 BY VIRTUAL OF OPERATION OF LAW (ADVERSE POSSESSION)
AND IN THE MATTER OF ORDER 37 RULE 7(1, 2, 3)
AND IN THE MATTER OF AN APPLICATION BY NJOKA KATHUNI, ROSE KEGENDO AND
AILEEN MARUTA THAT THEY BE REGISTERED AS PROPRIETORS OF LAND PARCELS MAGUMONI/MWONGE/1909, MAGUMONI/MWONGE/1910 AND LR. MAGUMONI/MWONGE/1911
BETWEEN
NJOKA KATHUNI………………………………...….1ST APPLICANT
ROSE KAGENDO ………………………..……....….2ND APPLICANT
AILEEN MARUTA………………………….......….....3RD APPLICANT
VERSUS
MBAKA KATHUNI……………………...…...…….1ST RESPONDENT
JUSTINE M. MUTINDWA.…………...………..….2ND RESPONDENT
CASTY KANYUA JOSEPH……………......…….3RD RESPONDENT
RULING
1. This application is dated 5th July, 2017 and seeks orders:
1. That the court be pleased to set aside and or vacate the dismissal order of 6th March dismissing the entire suit and the court be pleased to reinstate the suit for hearing.
2. Cost of the application be provided for.
2. The application is buttressed by the affidavit of NJOKAKATHUNI and has the following grounds:-
(a) That the instant suit was filed in court on 12th April, 2016.
(b) That the suit was dismissed under order 17 rule 2 (1) of Civil Procedure rules in that cause was not shown as to why the suit should not be dismissed for want of prosecution.
(c) That he suit had not finished a year yet as of 6th March 2017 and the requirements of order 17 rule 2 (1) of the C.P.R is that notice should issue after expirely of one calendar year.
(d) That on the day the suit was dismissed neither counsel for the applicant nor the applicants were aware of the date the notice having not been served upon counsel for the applicant nor the applicant himself.
(e) That if counsel for the applicant was served then he would have through his clerks received, signed and stamped the copy to be filed in court.
(f) That upon perusal of copy of notice on record it is neither received, signed nor stamped from the office of M/S IC.MUGO & CO ADVOCATES counsel for the applicants.
(g) That on 6th March 2017 counsel for the applicant was engaged in HIGH COURT SUCCESSIONCAUSE NO. 224 OF 2015, S.P.M CR CASE NO.1009 of 2016 S.P.M CR CASE NO.930 OF 2015, S.P.M CR CASE NO.690 of 2015 and S.P.M CR CASE NO.946 OF 2015.
(h) That the delaying (sic) prosecuting the matter was occasioned by the 2nd respondent not being found for service and for all this time counsel for the applicant through a court process server was trying to find out his whereabouts for service.
(i) That counsel for the applicant realized that the suit had been dismissed for want of prosecution on 24th May as he was coming to court to file an application for substituted service.
(j) That the applicants stand to suffer irreparable loss if this suit is not reinstated in that they will be rendered landless and destitute at the hands of their brothers the respondents.
(k) That it will be in the interest of justice and fairness that the orders to reinstate the suit be granted by the court.
3. On 31st July,2017 Mr. I. C.Mugo for the Plaintiffs/Applicants brought to the attention of the court that this suit was filed on 12th April, 2016 and by the time it was dismissed on 6th March, 2017 one year had not elapsed and, therefore, the threshold for the dismissal of the suit had not been achieved.
4. I agree. I declare that the apposite dismissal had been issued per incurium, inadvertently and irregularly.
5. In the circumstances, the dismissal is vacated and it is declared that the suit remains extant.
6. The plaintiffs are ordered to fully comply with order 11, CPR, within 30 days of today and the defendants are to fully comply with order 11, CPR, within 30 days after the receipt of the plaintiffs’ compliance documents.
7. Parties to come to court for directions on 11. 10. 2017.
8. The plaintiffs are ordered to properly serve orders issued by the court today vide this ruling to the defendants within 14 days of today.
9. It is so ordered.
Delivered in open court at Chuka this 31st day of July, 2017 in the presence of:
CA: Ndegwa
I.C. Mugo for the plaintiffs
Defendants absent
P. M. NJOROGE
JUDGE