[2018] KEELC 4064 (KLR)
The court found that the plaintiff failed to show sufficient cause as to why the suit should not be dismissed for want of prosecution. Despite the filing of a list of documents on the day set for showing cause, the plaintiff did not provide adequate reasons for the prolonged delay in prosecuting the suit, which had...
Source-derived case information.
- Citation
- [2018] KEELC 4064 (KLR)
- Parties
- Plaintiff: Peter Ndeke Mate; Defendant: Zakaria Nkune & 8 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 229 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Order 17 Civil Procedure Rules, Substitution of Deceased Parties, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ndeke Mate
Plaintiff
Zakaria Nkune & 8 Others
Defendant
Procedural Posture
Land and Property Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
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 to prevent dismissal of the suit.
- 3 Whether the plaintiff provided adequate information regarding the substitution of deceased defendants.
Ratio Decidendi
The court found that the plaintiff failed to show sufficient cause as to why the suit should not be dismissed for want of prosecution. Despite the filing of a list of documents on the day set for showing cause, the plaintiff did not provide adequate reasons for the prolonged delay in prosecuting the suit, which had been pending for 21 years since its filing in 1997. The court agreed with the defendants that the plaintiff had not specified which parties had died or when, and that the request for more time was not substantiated. Accordingly, the court exercised its discretion under Order 17 of the Civil Procedure Rules and dismissed the suit for want of prosecution.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- It is so ordered.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 229 OF 2017
FORMERLY EMBU CIVIL CASE NO. 92 OF 1997
PETER NDEKE MATE..................................PLAINTIFF
VERSUS
ZAKARIA NKUNE & 8 OTHERS...........DEFENDANTS
RULING
1. This court issued a Notice to show cause why this suit should not be dismissed for want of prosecution in terms of order 17 rule 2(1) of the Civil Procedure Rules. The notice was dated 21st February, 2018 and the parties were to show cause on 15th March, 2018.
2. I do note that after the Notice was issued, the plaintiff’s advocate, Messrs Duncan Muyodi & Co, on 15th March, 2018 filed the Plaintiff’s List of Documents.
3. During the day when cause was to be shown, that is on 15th March, 2018, Miss Kithaka holding brief for Mr.Muyodi, the plaintiff’s advocate told the court that this matter had been transferred from Embu. She further told the court that the plaintiff required 45 days to substitute some of the deceased defendants.
4. Mr. I.C. Mugo, holding brief for Mr. Joe Kathungu, the defendant’s advocate, told the court that the suit was ripe for dismissal under Order 17 of the Civil Procedure Rules for want of the prosecution. He postulated that the plaintiff had not shown cause why the suit should not be dismissed. Cause having not been shown, he opined that the court should go ahead to dismiss the suit.
5. Mr. Mugo went on to submit that the plaintiff did not have to wait until he was moved by the court. He also pointed out that the plaintiff had not told the court which party had died and when.
6. I agree with Mr. Mugo that cause has not been shown as to why this suit should not be dismissed for non-prosecution in terms of the provisions of Order 17 of the Civil Procedure Rules. More so, as the court notes that this suit was first filed in 1997, 21 years ago.
7. In the circumstances, this suit is dismissed.
8. It is so ordered.
Delivered in open court at Chuka his 21st day of March, 2018 in the presence of:
CA: Ndegwa
I.C. Mugo h/b Joe Kathungu for the defendants
Miss Wanjohi h/b Akwalu for the plaintiff
P.M. NJOROGE
JUDGE