[2017] KEELC 229 (KLR)
The court found that the delay in prosecuting the suit was not inordinate or inexcusable, particularly given the absence of a full-time Environment and Land Court judge during the relevant period. The court emphasized the sensitivity of land matters and the importance of hearing cases on their merits. Applying the...
Source-derived case information.
- Citation
- [2017] KEELC 229 (KLR)
- Parties
- Plaintiff: Samuel Kinpngetich Koskei; Plaintiff: Nancy Chepkurui; Defendant: Wilson Kipkorir Kipkato
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 66 of 2015
- Procedural Posture
- Notice of Motion / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- DO Ogal
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Judicial Discretion, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kinpngetich Koskei
Plaintiff
Nancy Chepkurui
Plaintiff
Wilson Kipkorir Kipkato
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to alleged inordinate delay by the plaintiffs.
- 2 Whether the delay in prosecuting the suit is excusable under the circumstances.
- 3 Whether justice can still be served despite the delay.
Ratio Decidendi
The court found that the delay in prosecuting the suit was not inordinate or inexcusable, particularly given the absence of a full-time Environment and Land Court judge during the relevant period. The court emphasized the sensitivity of land matters and the importance of hearing cases on their merits. Applying the principles from Ivita v Kyumbu and Utalii Transport, the court exercised its discretion to refuse dismissal, finding that justice could still be served and that the plaintiffs should be given an opportunity to prosecute their case. The application for dismissal was therefore disallowed, and directions were given for pre-trial compliance to facilitate expeditious disposal of the...
Court Disposition
application dismissed
Orders
- The application for dismissal for want of prosecution is disallowed.
- Parties to comply with pre-trials within 30 days from the date hereof to pave way for expeditious disposal of the case.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERICHO
ELC CASE NO. 66 OF 2015
SAMUEL KINPNGETICH KOSKEI…..… 1ST PLAINTIFF
NANCY CHEPKURUI………………….… 2ND PLAINTIFF
VERSUS
WILSON KIPKORIR KIPKATO………....… DEFENDANT
RULING
What is coming up for determination is the Notice of Motion dated 6th March 2017. The application which is brought pursuant to Order 17 Rules 2(1) and 2(3) of the Civil Procedure Rules seeks to have the suit herein dismissed for want of prosecution.
The application is premised of the supporting affidavit of Musembi Ndolo, learned counsel for the Defendant/Applicant in which he gives a chronology of events since the suit was filed in December 2015. The long and short of it is that since pleadings closed on 26th January 2016, the plaintiff has not taken any steps to fix the suit for hearing.
The application is opposed by the respondent through the replying affidavit sworn by the Zehrabanu Janmohamed counsel for plaintiff in which she denies that there has been inordinate delay in prosecuting the case. She maintains that the plaintiffs are willing to proceed with the case. She emphasizes that this being a land matter, it is fair and just that it be heard on the merits.
It was agreed that the application be canvassed by way of written submissions, and both counsels filed their submissions. In his submissions, counsel for the applicant urges the court to be guided by Article 159 of the Constitution as well as sections 1A and 1B of the Civil Procedure Act, particularly the overriding objective of the Act which is to facilitate a just expeditious, proportionate and affordable resolution of disputes. On the other hand, counsel for the respondent has submitted that a delay of one year is not inordinate. In agreeing with counsel for the respondent I rely on the case of Utalii Transport Company Limited and 3 Others V NIC Bank Limited & Another (2014) eKLRwhere it was held that a period of eighteen months was not inordinate delay.
I am also guided by the case of Ivita V Kyumbu (1984) KLR 441. Where Chesoni J as he then was stated as follows:
“The test applied by the courts in an application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite the delay. Thus even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter in the discretion of the court”
I have carefully considered the application, affidavits as well as the submissions of counsel. I also take judicial notice of the fact that the whole of last year, this court did not have a full-time ELC judge and it was not possible to fix cases for hearing in an expeditious manner. In view of the prevailing circumstances of this case and also considering the sensitivity of land matters, I am inclined to give the plaintiff a chance to have their case heard on the merits. I therefore disallow the application and direct that the parties comply with pre-trials within 30 days from the date hereof to pave way for an expeditious disposal of this case.
The costs of this application shall be in the cause.
Dated, signed and delivered at Kericho this 19th day of October 2017
J. M ONYANGO
JUDGE
In the presence of:
Miss Koech for Musembi Ndolo for the Applicant.
No appearance for the Respondents.
Court Assistant: Rotich