[2018] KEELC 1441 (KLR)
The court found that while there was a delay of over two years in prosecuting the suit, the plaintiff provided a reasonable and credible explanation for the delay, including his deployment on an international peace-keeping mission and failures by his legal representatives. The court accepted that the plaintiff had...
Source-derived case information.
- Citation
- [2018] KEELC 1441 (KLR)
- Parties
- Plaintiff: Richard Kiprotich Kenduiywo (Suing as the legal representative of the Estate of Sawe Margero Karchok, Deceased); Defendant: Member of County Assembly, Tuwan Ward; Defendant: Chief Officer-Lands, Housing & Physical Planning, Trans-Nzoia County; Defendant: Assistant Chief, Tuwan Sub-Location
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 109 of 2015
- Procedural Posture
- Land Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Mistake of Counsel, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Kiprotich Kenduiywo (Suing as the legal representative of the Estate of Sawe Margero Karchok, Deceased)
Plaintiff
Member of County Assembly, Tuwan Ward
Defendant
Chief Officer-Lands, Housing & Physical Planning, Trans-Nzoia County
Defendant
Assistant Chief, Tuwan Sub-Location
Defendant
Procedural Posture
Land Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to a delay of over two years.
- 2 Whether the delay was excusable given the plaintiff's circumstances and actions.
- 3 Whether the mistake of counsel should be visited upon the plaintiff.
Ratio Decidendi
The court found that while there was a delay of over two years in prosecuting the suit, the plaintiff provided a reasonable and credible explanation for the delay, including his deployment on an international peace-keeping mission and failures by his legal representatives. The court accepted that the plaintiff had not lost interest in the matter and that the delay was not entirely his fault. The court emphasized that the right to be heard is fundamental and that the mistake of counsel should not be visited upon the litigant. As there was no evidence of prejudice to the defendants and the plaintiff had demonstrated willingness to proceed, the application for dismissal for want of...
Court Disposition
Application for dismissal for want of prosecution dismissed.
Orders
- The application dated 13/4/2018 is dismissed.
- Parties to appear before the court for directions on the plaintiff’s application dated 2nd July 2018 and for directions on the hearing of the main suit on 18th September 2018 at 2:00 p.m.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 109 OF 2015
RICHARD KIPROTICH KENDUIYWO
(Suing as the legal representative of the Estate of
SAWE MARGERO KARCHOK (Deceased).................PLAINTIFF
VERSUS
MEMBER OF COUNTY ASSEMBLY
TUWAN WARD ...................................................1ST DEFENDANT
CHIEF OFFICER-LANDS, HOUSING &
PHYSICAL PLANNING,
TRANS-NZOIA COUNTY.........2ND DEFENDANT/APPLICANT
ASSISTANT CHIEF
TUWAN SUB-LOCATION.................................3RD DEFENDANT
R U L I N G
1. The suit before me was filed on 1/9/2015. On 13/4/2018 the 2nd defendant lodged an application seeking its dismissal. The grounds on which that application is made are that it is over 2 years since the suit was last in court on 16/2/2018.
2. The application is supported by the affidavit of Karani O. Aggrey Advocate sworn on 13/4/2018 which reiterates the grounds at the foot of the application. The deponent avers that it is clear that the plaintiff has lost interest in the suit, that the plaintiff’s claim is hopeless unfounded and unsustainable.
3. The plaintiff terminated the services of his erstwhile advocates vide a notice to act in person filed on 2/7/2018 and filed a replying affidavit dated 17/7/2018 in response to the application.
4. He admitted the 2 year delay. He also blamed it upon his counsel who he states he never took steps to inform him of the status of the case. He avers that works with the Kenya Defence Forces and exhibits as RKK2 a copy of his passport showing he left Kenya for Somalia on 7/12/2016.
5. He also states that he hired the services of another firm of advocates who also let him down despite having paid them. He denies that he has lost interest in the matter. He pleads that mistake of counsel should not be visited upon an innocent litigant and that a party should not be condemned unheard.
6. There was no reply by the defendants to the factual allegations in this affidavit and I presume them to be true. The court takes judicial notice that the international peace-keeping mission in Somalia has been ongoing for some years now. It is a noble cause meant to secure international communities from the threat of terrorism. Being involved therein should be deemed a sign of patriotism. In my view the plaintiff has given a good reason why the suit should not be dismissed for want of prosecution. However, the dispute between him and the defendants must be resolved in a just and fair manner that does not entail any further delay.
7. For the above reasons, I hereby dismiss the application dated 13/4/2018 and order that the parties shall appear before this court for directions on the plaintiff’s application dated 2nd July 2018 and also directions on the hearing of the main suit on the 18th September 2018 at 2. 00 p.m. Costs of the dismissed application shall be in the cause.
Dated, signed and delivered at Kitale on this 18thday of September, 2018.
MWANGI NJOROGE
JUDGE
18/9/2018
Coram: Before Mwangi Njoroge, Judge
Court Assistant - Picoty
Plaintiff in person
N/A for the defendants
COURT
Ruling delivered in open court.
MWANGI NJOROGE
JUDGE
18/9/2018