[2024] KEELC 4288 (KLR)
The court found that although there had been some delay in prosecuting the matter, the record showed the case was active before the Deputy Registrar until February 2024 and that less than a year had lapsed since the transfer of the related file. The Plaintiff's explanation attributing the delay to the transfer of...
Source-derived case information.
- Citation
- [2024] KEELC 4288 (KLR)
- Parties
- Plaintiff: Jebichy Boit Sitienei Rugut; Defendant: Silas Kipkoech Rop
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kapsabet
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2022
- Procedural Posture
- Notice to Show Cause / Ruling on Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; Plaintiff granted leave to serve Originating Summons afresh.
- Judges
- MN Mwanyale
- Legal Topics
- Dismissal for Want of Prosecution, Notice to Show Cause, Service of Originating Summons, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jebichy Boit Sitienei Rugut
Plaintiff
Silas Kipkoech Rop
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.
- 2 Whether the delay in prosecuting the matter was justified.
- 3 Whether the Plaintiff should be granted an opportunity to serve the Originating Summons afresh.
Ratio Decidendi
The court found that although there had been some delay in prosecuting the matter, the record showed the case was active before the Deputy Registrar until February 2024 and that less than a year had lapsed since the transfer of the related file. The Plaintiff's explanation attributing the delay to the transfer of the related case was not entirely accurate, but the court exercised its discretion in favor of allowing the suit to proceed. The court directed the Plaintiff to serve the Originating Summons afresh within seven days and to take necessary steps before the Deputy Registrar, emphasizing that the interests of justice would be better served by allowing the matter to proceed rather...
Court Disposition
Suit not dismissed; Plaintiff granted leave to serve Originating Summons afresh.
Orders
- Plaintiff to serve the Originating Summons afresh within 7 days from the date of the ruling.
- Mention to confirm filing of appearance and/or response to the Originating Summons before the Deputy Registrar on 19/6/2024.
Full Case Text
Judgment text and source record
26 paragraphs
Rugut v Rop (Environment & Land Case 12 of 2022) [2024] KEELC 4288 (KLR) (27 May 2024) (Ruling)
Neutral citation: [2024] KEELC 4288 (KLR)
Republic of Kenya
In the Environment and Land Court at Kapsabet
Environment & Land Case 12 of 2022
MN Mwanyale, J
May 27, 2024
Between
Jebichy Boit Sitienei Rugut
Plaintiff
and
Silas Kipkoech Rop
Defendant
Ruling
1. On 2/2/2024 the Deputy Registrar of the Court fixed this matter for Notice to Show Cause why it should not be dismissed before this Court on 11/3/2024.
2. On the said date both parties being absent the Court directed the registry to serve the Notice to Show Cause for 30/4/2024, and on the said date Mr. Mogambi appeared for the Plaintiff, while Mr. Mitei held brief for Mr. Bulbul for the Defendant although the record does not reflect a Memo of Appearance having been filed.
3. Mr. Mogambi sought and was given 7 days to file an affidavit to show cause and Notice to Show Cause was deferred to 8/5/2024.
4. The Plaintiff Mr. Silas Kipkoech Rop filed an affidavit to show cause. The title of his affidavit however indicated he was the Defendant yet the primary pleading, the originating summons dated 19/2/2020 reveals Mr. Silas Kipkoech Rop as the Plaintiff.
5. The deponent has deponed giving reasons why the matter should not be dismissed for want of prosecution. The affidavit details activities and the record reveal that the matter had been active before Court till 14/7/2022 and thereafter before the Honourable the Deputy Registrar till 2/2/2024 before coming back to this Court.
6. The Plaintiff was ordered to serve the Originating Summons on the Defendant who had filed a matter before the Chief Magistrate’s Court ELC Case No. 38/2019 Eldoret which matter had been transferred to this Court and assigned case no. 2/2023.
7. Incidentally case ELC 2/2023 was also slated for Notice to Show Cause on 8/5/2024 together with this file but there having been no cause when by way of an affidavit or otherwise, the same was dismissed on 8/5/2024.
8. Contrary to the depositions that the delay in prosecuting this matter was occasioned by the delay in the transfer of Kapsabet, ELC No. 2/2023 formerly (Eldoret Chef Magistrates ELC case No. 38/2019) the delay in prosecuting this matter could not have arisen from the said transfer.
9. Having noted the matter was active before the Deputy Registrar and that by the time the matter was slated for Notice to Show Cause on 2/2/2024 one year had not lapsed since the other file had been transferred.
10. The Court directs the Plaintiff to serve the Originating Summons afresh and take up the requisite motions before the Deputy Registrar in the event of failure to enter appearance by the Defendant.
11. The Originating Summons to be served afresh within 7 days from today and mention to confirm filing of an appearance and/or response to the Originating Summons before the Deputy Registrar on 19/6/2024.
RULING, DELIVERED AND DATED AT KAPSABET THIS 27TH DAY OF MAY, 2024. HON. M. N. MWANYALEJUDGEIn the presence of; -Mr. Mogambi for the Plaintiff