[2020] KEELC 823 (KLR)
The court found that the suit had been dormant for seven years, far exceeding the one-year threshold set by Order 17 rule 2(3) of the Civil Procedure Rules. The absence of any response to the application by the plaintiff was interpreted as a clear indication of loss of interest in the matter. The court emphasized...
Source-derived case information.
- Citation
- [2020] KEELC 823 (KLR)
- Parties
- Plaintiff: Presbyterian Church of East Africa – Pwani Presbytery; Defendant: Hakika Transport Services Limited; Defendant: Jamal Abed; Defendant: Abdulhakim Abed; Defendant: Mohamed Abed; Defendant: Transpares Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 211 of 2013
- Procedural Posture
- Land and Property Suit / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendants
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Land Ownership Dispute, Injunction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Presbyterian Church of East Africa – Pwani Presbytery
Plaintiff
Hakika Transport Services Limited
Defendant
Jamal Abed
Defendant
Abdulhakim Abed
Defendant
Mohamed Abed
Defendant
Transpares Limited
Defendant
Procedural Posture
Land and Property Suit / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to prolonged inactivity.
- 2 Whether the plaintiff has lost interest in prosecuting the case.
Ratio Decidendi
The court found that the suit had been dormant for seven years, far exceeding the one-year threshold set by Order 17 rule 2(3) of the Civil Procedure Rules. The absence of any response to the application by the plaintiff was interpreted as a clear indication of loss of interest in the matter. The court emphasized that there was no justification for allowing a case to remain indefinitely on the court's docket without any steps being taken to prosecute it. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution, ensuring judicial efficiency and preventing unnecessary clogging of the court system.
Court Disposition
suit dismissed for want of prosecution with costs to the defendants
Orders
- The plaintiff’s suit is dismissed for want of prosecution.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA
ELC NO. 211 OF 2013
PRESBYTERIAN CHURCH OF
EAST AFRICA – PWANIPRESBYTERY..........................................PLAINTIFF
VERSUS
HAKIKA TRANSPORT SERVICES LIMITED......................1ST DEFENDANT
JAMAL ABED.............................................................................2ND DEFENDANT
ABDULHAKIM ABED...............................................................3RD DEFENDANT
MOHAMED ABED......................................................................4TH DEFENDANT
TRANSPARES LIMITED...........................................................5TH DEFENDANT
RULING
(Application to dismiss suit for want of prosecution; suit dormant for 7 years; no reply to the application; clear that the plaintiff has lost interest; suit dismissed for want of prosecution)
1. The application before me is that dated 30 July 2020 filed by the 1st – 3rd defendants (erroneously indicated as interested parties). The application seeks the dismissal of this suit for want of prosecution. Despite being served, no response has been filed to the application.
2. I have considered the application and gone through the record. I note that this suit was commenced by the plaintiff through a plaint filed on 20 September 2013 against the five defendants. The plaintiff averred to be the owner and in occupation of the land parcel identified as LR No. 28405 measuring 9. 6 Ha having purchased it from Juma Jefwa Mboe and Sidi Chengo Nganzo. They pleaded that they had a dispute with the vendors which led to the filing of the suit Mombasa HCCC No. 139 of 2011 which at the time of filing this case, was said to be pending judgment but that there is an order of injunction in favour of the plaintiff. The plaintiff pleaded further that on 9 September 2013, the defendants violently trespassed into the suit land and demolished the perimeter fence. In the suit the plaintiff sought a declaration that the defendants have no right to the property.
3. The last entry in the file is of 25 September 2014 before Mukunya J, where it was recorded that an application be served on the other parties and a convenient date taken in the court registry.
4. The supporting affidavit to this motion is sworn by Abdulhakim Abeid Khamis, the 3rd defendant. He has deposed that that the plaintiff obtained judgment in the suit Mombasa HCCC No. 139 of 2011 against the vendors but that judgment has since been set aside. He has pointed out that no steps to prosecute this case have ever been taken since 2013.
5. I already mentioned that no response has been filed to this application. The record speaks for itself. The last time the matter was in court is 25 September 2013. It is now 7 years ago.
6. Order 17 rule 2(3) allows a party to apply for the dismissal of a suit that has been dormant for one year. This has been dormant for seven good years. The fact that no response has been filed to this application is informative that the plaintiff has lost interest in this case. There is no need for this case to hang around the court shelves without hope of being prosecuted.
7. I allow this application. The result is that the plaintiff’s suit is dismissed for want of prosecution with costs to the defendants.
8. Orders accordingly.
DATED AND DELIVERED THIS 15TH DAY OF OCTOBER 2020
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA