[2024] KEELC 1057 (KLR)
The court found that the plaintiff had failed to take any meaningful step in the suit for over twelve years, with the last action being in October 2009 and the application to set aside dismissal being filed only in September 2021, six years after the dismissal. The explanation that the defendants evaded service was...
Source-derived case information.
- Citation
- [2024] KEELC 1057 (KLR)
- Parties
- Plaintiff: Ernest Milikao Shiroya; Defendant: Tomaz Muongo Luka; Defendant: Richard Musebe Onyango; Defendant: Laetitia Mulamula
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E004 of 2023
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs to the defendants
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Judicial Discretion, Delay in Prosecution, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ernest Milikao Shiroya
Plaintiff
Tomaz Muongo Luka
Defendant
Richard Musebe Onyango
Defendant
Laetitia Mulamula
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the delay in prosecuting the suit and the application is excusable.
- 3 Whether reinstatement of the suit would prejudice the defendants.
Ratio Decidendi
The court found that the plaintiff had failed to take any meaningful step in the suit for over twelve years, with the last action being in October 2009 and the application to set aside dismissal being filed only in September 2021, six years after the dismissal. The explanation that the defendants evaded service was found to be an afterthought, as the plaintiff could have sought substituted service but did not. The delay was deemed inordinate and unexplained, and the court held that reinstating the suit would be prejudicial to the defendants. The court exercised its discretion against the plaintiff, finding no merit in the application to set aside the dismissal for want of prosecution.
Court Disposition
application dismissed with costs to the defendants
Orders
- Notice of Motion dated 15th April 2021 is dismissed.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
26 paragraphs
Shiroya v Luka & 2 others (Environment & Land Case E004 of 2023) [2024] KEELC 1057 (KLR) (29 February 2024) (Ruling) (with dissent)
Neutral citation: [2024] KEELC 1057 (KLR)
Republic of Kenya
In the Environment and Land Court at Kakamega
Environment & Land Case E004 of 2023
DO Ohungo, J
February 29, 2024
Between
Ernest Milikao Shiroya
Plaintiff
and
Tomaz Muongo Luka
1st Defendant
Richard Musebe Onyango
2nd Defendant
Laetitia Mulamula
3rd Defendant
Ruling
1. This suit was filed in the High Court at Kakamega 3rd April 2000, as Kakamega HCC No. 60 of 2000. It was later dismissed by the said court on 20th April 2015, for want of prosecution. Subsequently, the plaintiff filed Notice of Motion dated 15th April 2021, seeking setting aside of the order of dismissal. The matter was transferred to this court on 6th July 2023, pursuant to an order made by S Chirchir, J. The reason for the transfer was that the High Court lacked jurisdiction since the suit concerns cancellation of title to land.
2. Notice of Motion dated 15th April 2021 is supported by an affidavit sworn by the Plaintiff. He deposed that neither him nor his advocate was aware of the dismissal of 20th April 2015 and that he was condemned unheard. He added that the delay in prosecuting the matter was occasioned by the Defendants who constantly evaded service.
3. The defendants opposed the application through a replying affidavit sworn by the Second Defendant. He deposed that the present application was filed six years after the dismissal and that there was a delay of fifteen years in prosecuting the suit besides a delay in prosecuting the present application. He added that reinstatement of the suit would be prejudicial to the Defendants.
4. The application was canvassed through written submissions which both sides duly filed. I have considered the application, the affidavits, and the submissions. The sole issue for determination is whether the orders sought should issue.
5. When considering an application such as the present one, the court exercises discretion pursuant to the principles laid down in Mbogoh & Another v. Shah [1968] EA 93 and reiterated in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR. The court has unfettered discretion and will consider such factors as the reason for the failure to prosecute the suit, the length of time that has elapsed since the order sought to be set aside was made, the respective prejudice each party is likely to suffer and whether overall it is in the interest of justice to grant setting aside. The court’s discretion is to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake, but not to assist a person who has deliberately sought to obstruct or delay the cause of justice.
6. A perusal of the record shows that prior to dismissal of the suit, the last step taken in the matter by the Plaintiff was on 12th October 2009 when his advocate fixed an application dated 10th July 2009 for hearing on 4th March 2010. No other step was taken by the Plaintiff until the suit was dismissed on 20th April 2015, over five years later. Even after the dismissal, the Plaintiff took no step until 20th September 2021, when he filed the present application over six years later. The application itself is dated 15th April 2021, an indication that even after its preparation, it was not filed until after over five months later. The delay between 12th October 2009 and 20th September 2021 is a staggering twelve years, hence inordinate. The explanation given is unacceptable and does not aid the Plaintiff. If indeed the Defendants were constantly evading service personal service, the Plaintiff should have immediately moved the court for an order allowing substituted service. That he did not do so is testimony that such allegations are but afterthoughts.
7. I find no merit in Notice of Motion dated 15th April 2021 and I therefore dismiss it with costs to the Defendants.
DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 29TH DAY OF FEBRUARY 2024. D. O. OHUNGOJUDGEDelivered in open court in the presence of:No appearance for the Plaintiff/ApplicantMs Wambani for the Defendants/RespondentsCourt Assistant: E. Juma