[2017] KEELC 3133 (KLR)
The court found that although the plaintiff had not prosecuted the pending application or taken sufficient steps to advance the suit, she had demonstrated some interest in prosecuting the matter, as evidenced by correspondence with the 1st defendant. The court was not fully convinced by the plaintiff's diligence but...
Source-derived case information.
- Citation
- [2017] KEELC 3133 (KLR)
- Parties
- Plaintiff: Purity Cherotich Tesot; Defendant: Rusi Chepng’etich Langat; Defendant: Paul Kipsang Koech
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 248 of 2014
- Procedural Posture
- Notice to Show Cause / Ruling on Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff given benefit of doubt and directed to take steps to prosecute.
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Order 17 Rule 2, Delay in Prosecution, Injunctive Relief, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Purity Cherotich Tesot
Plaintiff
Rusi Chepng’etich Langat
Defendant
Paul Kipsang Koech
Defendant
Procedural Posture
Notice to Show Cause / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules.
- 2 Whether the plaintiff has demonstrated sufficient interest and steps to prosecute the suit.
Ratio Decidendi
The court found that although the plaintiff had not prosecuted the pending application or taken sufficient steps to advance the suit, she had demonstrated some interest in prosecuting the matter, as evidenced by correspondence with the 1st defendant. The court was not fully convinced by the plaintiff's diligence but decided to give her the benefit of doubt. The court declined to dismiss the suit, instead ordering the plaintiff to take concrete steps within sixty days to prosecute the pending application and fix the suit for hearing. The court emphasized that the suit would not be ready for hearing until the pending application was addressed, and that the plaintiff was required to do more...
Court Disposition
Suit not dismissed; plaintiff given benefit of doubt and directed to take steps to prosecute.
Orders
- Plaintiff to take concrete steps within sixty (60) days to deal with the pending application and fix the suit for hearing.
- Suit not dismissed under Order 17 rule 2.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAKURU
CASE No. 248 OF 2014
PURITY CHEROTICH TESOT................................................PLAINTIFF
VERSUS
RUSI CHEPNG’ETICH LANGAT................................1ST DEFENDANT
PAUL KIPSANG KOECH...........................................2ND DEFENDANT
RULING
(Notice to show cause why a suit should not be dismissed under Order 17 rule 2; plaintiff argued that she is keen on prosecuting suit; plaintiff given benefit of doubt; suit not dismissed)
1. On 18th February 2017, the Deputy Registrar of this court issued to the parties herein notice to attend court on 30th 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 2nd September 2014. Alongside the plaint, the plaintiff also filed a Notice of Motion dated 19th August 2014 seeking an injunction under certificate of urgency. The application is yet to be heard inter partes. The matter has had no activity since 30th September 2014 when the application was stood over generally.
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 plaintiff responded to the notice to show cause by filing a replying affidavit sworn on 21st March 2017 by Kipkoech B. Ng’etich. Counsel urged the court not to dismiss the suit and submitted that the plaintiff is still interested in prosecuting the suit but the defendants have so far neither entered appearance nor filed a defence. Plaintiff’s advocates exhibited a letter dated 5th August 2016 to the 1st defendant forwarding to her list of issues.
6. I have considered the notice to show cause and counsel’s submissions. I am not entirely convinced that the plaintiff has approached the matter with the industry it deserves. Notice of Motion dated 19th August 2014 is still pending. No explanation has been offered as to why it has not been prosecuted. The suit will not be truly ready for hearing until the pending application has been dealt with. For that reason, the plaintiff needed to do more over and above drafting and forwarding list of issues.
7. Nevertheless, I am ready to give the plaintiff the benefit of doubt. I will therefore not dismiss the suit as was sought. I order the plaintiff to take concrete steps in the next sixty (60) days to deal with the pending application and to fix the suit for hearing.
Dated, signed and delivered in open court at Nakuru this 6th day of April 2017.
D. O. OHUNGO
JUDGE
In the presence of:
Mr. Wanga holding brief for Mr. Kipkoech for the plaintiff
No Appearance for the defendant
Court Assistant: Gichaba