[2018] KEELC 1004 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit for over seven years, and no response was filed to the application for dismissal. The plaintiff's counsel admitted to not having seen or traced the plaintiff for seven years. The court held that the plaintiff had lost interest in the...
Source-derived case information.
- Citation
- [2018] KEELC 1004 (KLR)
- Parties
- Plaintiff: Seth Fredrick Ochieng Owino; Defendant: Housing Finance Company of Kenya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 252 of 2018
- Procedural Posture
- Civil Suit / Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Legal Topics
- Dismissal for Want of Prosecution, Statutory Power of Sale, Mortgage Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Seth Fredrick Ochieng Owino
Plaintiff
Housing Finance Company of Kenya
Defendant
Procedural Posture
Civil Suit / Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(3) of the Civil Procedure Rules.
- 2 Whether the plaintiff has demonstrated any interest or taken any steps to prosecute the suit.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit for over seven years, and no response was filed to the application for dismissal. The plaintiff's counsel admitted to not having seen or traced the plaintiff for seven years. The court held that the plaintiff had lost interest in the suit, and that the requirements of Order 17 Rule 2(3) of the Civil Procedure Rules had been satisfied. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution with costs to the defendant.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The application dated 14 January 2016 is allowed.
- The plaintiff's suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OFKENYA
AT NAKURU
ELC NO.252 OF 2018
SETH FREDRICK OCHIENG OWINO.............................................PLAINTIFF
VERSUS
HOUSING FINANCE COMPANY OF KENYA ............................DEFENDANT
RULING
(Application for dismissal of suit for want of prosecution; no action taken by plaintiff for over 7 years; application allowed; plaintiff’s suit dismissed with costs)
1. The application before me is that dated 14 January 2016 filed by the defendant. It is an application brought pursuant to the provisions of Order 17 Rule 2(3) of the Civil Procedure Rules, and the principal order sought is the dismissal of the plaintiff’s suit for want of prosecution. No response has been filed to the application.
2. I have perused the record. I note that this suit was commenced by way of a plaint which was filed on 7 February 2002. In the suit, the plaintiff’s chief complaint was that the defendant, a financial institution, wrongfully sold his land parcel Njoro/Njoro Block 5/125 in exercise of its statutory power of sale. The plaint was later amended on 19 June 2002 after which the defendant filed an amended defence on 17 July 2002. Not much has happened in the case save for a few mentions terminating in the plaintiff taking a hearing date on 17 December 2010 for hearing on 3 May 2011 but the file seems not to have been taken to court on that day. Since then, the plaintiff has not taken any steps to move this matter.
3. Order 17 Rule 2 is applicable and the same provides that where no step is taken in a matter for more than one year, the other party is at liberty to apply for its dismissal. That is precisely what the defendant has now done.
4. As I have mentioned, no response was filed by the plaintiff to oppose the motion or show cause why the case should not be dismissed for want of prosecution. Mr. Odundo, who appeared for the plaintiff at the hearing of this motion stated that for seven years their office has not seen the respondent and they have been unable to trace him. Clearly, if the plaintiff was interested in pursuing this matter, he would have actively sourced out his counsel for the matter to progress. This suit has been lying in the court shelves for the last 16 years and I do not see any hope of the plaintiff prosecuting it. It is apparent to me that the plaintiff has lost interest in the suit.
5. I therefore allow this application and proceed to dismiss this case for want of prosecution with costs to the defendant.
6. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 23rd day of October 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of : -
Mr. Kibet holding brief for Mr. Kisilah for the defendant/applicant.
No appearance on the part of M/s Odhiambo & Odhiambo Advocates for the plaintiff/respondent.
Court Assistants: Nelima/Carlton.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU