[2018] KEELC 333 (KLR)
The court found that although the plaintiff had not taken steps to prosecute the suit for twelve months, the mandatory pre-trial procedures under Order 11 of the Civil Procedure Rules had not been complied with by either party. As such, the suit was not ripe for dismissal for want of prosecution. However, the...
Source-derived case information.
- Citation
- [2018] KEELC 333 (KLR)
- Parties
- Plaintiff: Serve In Love Africa (SILA) Trust; Defendant: Abraham Kiptarus Kiptoo; Defendant: Patrick Kipkosgei Kibet; Defendant: David Kipsang Kipyego
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 21 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution and Discharge of Injunction
- Outcome
- Application for dismissal disallowed; interlocutory injunction deemed lapsed.
- Judges
- A Ombwayo
- Legal Topics
- Dismissal for Want of Prosecution, Interlocutory Injunctions, Pre Trial Procedure, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Serve In Love Africa (SILA) Trust
Plaintiff
Abraham Kiptarus Kiptoo
Defendant
Patrick Kipkosgei Kibet
Defendant
David Kipsang Kipyego
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution and Discharge of Injunction
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the interlocutory injunction issued on 18.10.2017 should be discharged or vacated.
Ratio Decidendi
The court found that although the plaintiff had not taken steps to prosecute the suit for twelve months, the mandatory pre-trial procedures under Order 11 of the Civil Procedure Rules had not been complied with by either party. As such, the suit was not ripe for dismissal for want of prosecution. However, the interlocutory injunction granted on 18.10.2017 had lapsed by operation of law under Order 40, Rule 6 of the Civil Procedure Rules, as the suit had not been determined within twelve months and no sufficient reason was provided to extend the injunction. The application for dismissal was therefore disallowed, but the injunction was deemed lapsed.
Court Disposition
Application for dismissal disallowed; interlocutory injunction deemed lapsed.
Orders
- The application for dismissal of the suit for want of prosecution is disallowed.
- The interlocutory injunction issued on 18th October, 2017 is deemed to have lapsed by operation of law.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 21 OF 2017
SERVE IN LOVE AFRICA (SILA) TRUST.......................PLAINTIFF
VERSUS
ABRAHAM KIPTARUS KIPTOO...........................1ST DEFENDANT
PATRICK KIPKOSGEI KIBET...............................2ND DEFENDANT
DAVID KIPSANG KIPYEGO..................................3RD DEFENDANT
RULING
The application before court is dated 29. 10. 2018 whereon the applicant prays that the suit herein be dismissed for want of prosecution and that in the alternative, the interlocutory orders of injunction issued on 18. 10. 2017 be discharged and or vacated. The application is supported by the affidavit of Abraham Kiptarus Kiptoo who states that the plaintiff moved to court and secured orders of injunction on 18. 10. 2017. No action has been taken by the plaintiff to prosecute the suit for 12 months. It appears that the plaintiff has lost interest in the suit. The pendency of the suit is prejudiced to the defendant’s enjoyment of the property. The plaintiff in response to the application states that the plaintiff is keen to have the case heard and determined on merit. The injunction should be extended in the interest of the orders of justice.
I have considered the provisions of Order 11 of the Civil Procedure Rules on pre-trial directions and conferences and do find that though the pleadings were closed, pre-trial directions and conferences have not been complied with and therefore, the suit is pre-mature for dismissal. According to Order 11 of the Civil Procedure Act, Order 11, Rule 1, after the close of the pleadings parties shall within ten days complete, file and serve the pre-trial questionnaire as provided in Appendix B and Order 11, Rule 3, with a view to furthering expeditious disposal of cases and case management the court shall within thirty days after the close of pleadings convene a Case Conference in which it shall consider compliance with Order 3 Rule 2 and Order 7 Rule 5, identify contested and uncontested issues, explore methods to resolve the contested issues, where possible secure parties’ agreement on a specific schedule of events in the proceedings. These proceedings have not been undertaken and therefore the defendant ought to have moved the court to ensure that these processes are complied with and not to apply for dismissal of suit. Therefore, application for dismissal is disallowed.
However, the interlocutory orders of injunction herein have lapsed by operation of the law by virtue of Order 40, Rule 6 of the Civil Procedure Rules. This rule provides as follows: -
“Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise.”
The upshot of the above is an order that the injunction issued on 18th October, 2017 is deemed as having lapsed. Orders accordingly.
Dated and delivered at Eldoret this 5th day of December, 2018.
A. OMBWAYO
JUDGE