[2017] KEELC 3509 (KLR)
The court found that the plaintiff had demonstrated sufficient cause for the delay in prosecuting the suit, specifically citing the plaintiff's serious illness and resulting amputation. The court exercised its discretion under Order 17 Rule 2(1) of the Civil Procedure Rules not to dismiss the suit. The court further...
Source-derived case information.
- Citation
- [2017] KEELC 3509 (KLR)
- Parties
- Applicant: Paul Ndubi Nkoroi; Respondent: Justus Kirigia M'Ikiara
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 08 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Show Cause for Dismissal Under Order 17 Rule 2(1) Civil Procedure Rules
- Outcome
- Suit not dismissed; directions issued for compliance and further hearing.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Limitation of Actions, Adverse Possession, Compliance With Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Ndubi Nkoroi
Applicant
Justus Kirigia M'Ikiara
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Show Cause for Dismissal Under Order 17 Rule 2(1) Civil Procedure Rules
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules.
- 2 Whether the plaintiff has shown sufficient cause for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the plaintiff had demonstrated sufficient cause for the delay in prosecuting the suit, specifically citing the plaintiff's serious illness and resulting amputation. The court exercised its discretion under Order 17 Rule 2(1) of the Civil Procedure Rules not to dismiss the suit. The court further directed the plaintiff to serve the orders upon the defendant within 10 days and to comply with Order 11 of the Civil Procedure Rules within 14 days, with corresponding compliance required from the defendant. Directions were set for a future date to progress the matter.
Court Disposition
Suit not dismissed; directions issued for compliance and further hearing.
Orders
- Plaintiff to serve the orders issued by the court upon the defendant within 10 days.
- Plaintiff to fully comply with Order 11 of the Civil Procedure Rules within 14 days.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT CHUKA
CHUKA ELC CASE NO 08 OF 2017
FORMERLY MERU ELC CASE NO. 18 OF 2014
IN THE MATTER OF LIMITATION OF ACTIONS ACT CAP 22, SECTION 7, 37 & 38
AND
IN THE MATTER OF LAND REGISTRATION ACT NO. 3/2012, SECTION 28
AND
IN THE MATTER OF AN APPLICATION BY PAUL NDUBI NKOROI UNDER THE LIMITATION OF ACTION ACT THAT BE REGISTERED WITH 0. 23 ACRES OUT OF LR: KIERA EAST MAGUTUNI/166
AND FOR A DECLARATION THAT THE APPLICANT BE REGISTERED WITH 0. 23 ACRES OUT OF LR:KIERA EAST MAGUSTUNI/166
BETWEEN
PAUL NDUBI NKOROI……………….APPLICANT
VERSUS
JUSTUS KIRIGIA M’IKIARA….……RESPONDENT
RULING
1. The parties came to court on 28. 2.2017 to show cause why this suit should not be dismissed in terms of order 17 rule 2(1) of the Civil Procedure Rules.
2. Mr. Mugo attributed the delay in the prosecution of this suit to the lengthy sickness of the plaintiff. He told the court that the sickness was so serious that the plaintiff is now an amputee. He asked the court to give the plaintiff a chance to prosecute his suit.
3. Despite service, the defendant was not in court.
4. I find that the plaintiff has shown cause to the satisfaction of this court that this suit should NOT be dismissed.
5. The plaintiff is ordered to serve upon the defendant the orders issued by the court within 10 days of today.
6. The plaintiff is ordered to fully comply with order 11, CPR, within 14 days of today and the defendant is ordered to do so within 14 days of receipt of the plaintiff’s compliance documents.
7. Directions on 27. 3.2017.
8. It is so ordered.
Delivered in open court at Chuka this 28th day of February, 2017 in the presence of:
CA: Ndegwa
I.C. Mugo for the Plaintiff
Defendant NOT present
P.M. NJOROGE
JUDGE