[2017] KEELC 3073 (KLR)
The court found that the applicant failed to provide any specific evidence of attempts to fix the matter for hearing or to prosecute the suit after October 2014. The mere assertion that the court diary was full was deemed insufficient, as the applicant did not demonstrate any concrete steps or efforts made to move...
Source-derived case information.
- Citation
- [2017] KEELC 3073 (KLR)
- Parties
- Applicant: Philis Nyambura Ndegwa; Respondent: Josephat Nyamu; Respondent: Patrick Gitau Matindi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 118 of 2014
- Procedural Posture
- Originating Summons / Ruling on Notice to Show Cause Under Order 17 Rule 2
- Outcome
- suit dismissed for want of prosecution
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Order 17 Rule 2, Originating Summons Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philis Nyambura Ndegwa
Applicant
Josephat Nyamu
Respondent
Patrick Gitau Matindi
Respondent
Procedural Posture
Originating Summons / Ruling on Notice to Show Cause Under Order 17 Rule 2
Legal Issues
- 1 Whether the applicant has shown sufficient cause to prevent dismissal of the suit for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules.
- 2 Whether the lack of available court dates constitutes sufficient cause for delay in prosecuting the suit.
Ratio Decidendi
The court found that the applicant failed to provide any specific evidence of attempts to fix the matter for hearing or to prosecute the suit after October 2014. The mere assertion that the court diary was full was deemed insufficient, as the applicant did not demonstrate any concrete steps or efforts made to move the case forward. The court emphasized that a congested diary does not excuse a party's inaction, especially in a suit commenced under certificate of urgency, which requires diligent prosecution. Consequently, the applicant did not show sufficient cause to prevent dismissal, and the suit was dismissed with costs to the second respondent.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules.
- Costs awarded to the 2nd respondent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
CASE No. 118 OF 2014 (OS)
PHILIS NYAMBURA NDEGWA.........….............................APPLICANT
VERSUS
JOSEPHAT NYAMU……..……………………......1ST RESPONDENT
PATRICK GITAU MATINDI…….………………….2ND RESPONDENT
RULING
(Notice to show cause why a suit should not be dismissed under Order 17 rule 2; applicant had argued that court’s diary was full; no evidence of attempts to get a date; applicant failed to show cause; suit dismissed)
1. On 18th February 2017, the Deputy Registrar of this court issued to the parties herein notice to attend court on 29th March 2017 to show cause why the suit should not be dismissed under Order 17 rule 2 of the Civil Procedure Rules.
2. The suit herein was filed on 4th June 2014 as an Originating Summons and along with it an application for injunction under certificate of urgency. The certificate of urgency was not argued until 16th October 2014 when the applicant filed yet another certificate of urgency. The court declined to certify the matter urgent. The matter has had no other activity since 16th October 2014.
3. Order 17 rule 2 states
Notice to show cause why suit should not be dismissed
(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
(4) The court may dismiss the suit for non-compliance with any direction given under this Order.
4. It follows that under the rule, the court may upon issuing a notice to show cause, dismiss any suit in which no application has been made or step taken by either party for one year, if cause is not shown to its satisfaction.
5. Counsel for the applicant attended court at the hearing of the notice to show cause and urged the court not to dismiss the suit. Counsel submitted that the applicant is still interested in prosecuting the suit but no dates have been available since the court’s diary is full.
6. Counsel for the second defendant submitted that this being a suit commenced by way of Originating Summons directions ought to have been taken as to how the hearing will proceed. That the plaintiff has not ensured that directions are taken. That the plaintiff has never invited them for fixing as a way of showing willingness to prosecute the matter.
7. I have considered the notice to show cause and counsels’ submissions. Even if there were no dates available at the registry the applicant ought to show the court that efforts to fix the pending application or the main matter had been made. It is not enough to just claim that dates were not available. A congested court diary is irrelevant to a party not keen on prosecuting his case. Specific evidence is needed to help the court determine the issue on the merits. The applicant didn’t avail such evidence.
8. A suit commenced under certificate of urgency should always be prosecuted with the priority that was sought at inception. The applicant has failed to show cause to the satisfaction of the court that this suit ought not to be dismissed. I therefore dismiss the suit with costs to the 2nd defendant.
9. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 30th day of March 2017.
D. O. OHUNGO
JUDGE
In the presence of:
Mr. Wanga holding brief for Mr. Simiyu for the applicant
No appearance for the 1st respondent
No appearance for the 2nd respondent
Court Assistant: Gichaba