[2017] KEELC 2055 (KLR)
The court found that the threshold for dismissal for want of prosecution under Order 17 of the Civil Procedure Rules had not been met, as less than one year had elapsed between the last step taken in court and the filing of the application for dismissal. The court also considered the opposition to dismissal by the...
Source-derived case information.
- Citation
- [2017] KEELC 2055 (KLR)
- Parties
- Plaintiff: Silveria Muria Nkonge; Defendant: Simon Mureithi alias Simon Ishmael; Defendant: Elikana Mutembei; Defendant: Edward Mugo M’Mbauni; Defendant: Julius G. Mwebia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 107 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal dismissed; suit to proceed
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Order 17 Civil Procedure Rules, Case Management, Compliance With Pretrial Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silveria Muria Nkonge
Plaintiff
Simon Mureithi alias Simon Ishmael
Defendant
Elikana Mutembei
Defendant
Edward Mugo M’Mbauni
Defendant
Julius G. Mwebia
Defendant
Procedural Posture
Land and Property Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 of the Civil Procedure Rules.
- 2 Whether the plaintiff has taken steps to prosecute the suit within the required period.
- 3 Whether the threshold for dismissal for want of prosecution has been met.
Ratio Decidendi
The court found that the threshold for dismissal for want of prosecution under Order 17 of the Civil Procedure Rules had not been met, as less than one year had elapsed between the last step taken in court and the filing of the application for dismissal. The court also considered the opposition to dismissal by the 1st and 2nd defendants and was satisfied that the plaintiff and these defendants had demonstrated sufficient cause for the suit to remain active. Consequently, the application for dismissal was declined, and the suit was not dismissed. The court further directed all parties to comply with Order 11 of the Civil Procedure Rules within 60 days and set a date for directions.
Court Disposition
application for dismissal dismissed; suit to proceed
Orders
- The suit is not dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 107 OF 2017
FORMERLY MERU ELC CASE NO. 83 OF 2007
SILVERIA MURIA NKONGE.......................................................PLAINTIFF
VERSUS
SIMON MUREITHI ALIAS SIMON ISHMAEL..............1ST DEFENDANT
ELIKANA MUTEMBEI....................................................2ND DEFENDANT
EDWARD MUGO M’MBAUNI.......................................3RD DEFENDANT
JULIUS G. MWEBIA......................................................4TH DEFENDANT
RULING
1. This application is dated 6th April, 2017 and seeks orders:
1. That this honourable court be pleased to dismiss this suit for want of prosecution.
2. That cost of this application and entire suit be borne by the plaintiff.
2. The application is supported by the affidavit of Edward Mugo M’Mbuani sworn on 6. 4.2017 and has the following grounds:
a) That the plaintiff has not taken only steps to set down this matter for hearing for over four (4) years.
b) That the plaintiff has lost interest in this matter.
c) That it is in the interest of justice that the application herein be allowed.
3. The application was heard interpartes on 26. 7.2017. Mr. Mark Muriithi supported dismissal of the suit by virtue of the claimed fact that no step had been taken for over one year before this application was filed. He laid reliance on the face of the application and on what was deponed in the apposite affidavit.
4. Mr Nyamu opposed the application and said that the parties were in court on 23. 6.2016 but the matter could not proceed as the 3rd and 4th defendants were not in court. He opined that between 23. 6.2016 and 7. 4.2017, when this application was filed one year had not elapsed. He submitted that the dismissal threshold as decreed by order 17 of the Civil Procedure Rules had not been achieved.
5. The 1st and 2nd defendants opposed dismissal of the suit.
6. Having considered the totality of the issues raised herein and the feelings of the 1st and 2nd defendants that the suit should not be dismissed, I find that the plaintiff and the 1st and 2nd defendants have shown to the satisfaction of the court that this suit should NOT be dismissed.
7. This suit is not dismissed.
8. Costs shall be in the cause.
9. It is ordered that all parties, if they have not complied, should fully comply with order 11, Civil Procedure Rules within 60 days of today.
10. Parties will take directions on 6. 11. 2017
11. It is so ordered.
Delivered in open court at Chuka this 26th day of July, 2017 in the presence of:
CA: Ndegwa
Nyamu Nyaga for the plaintiff
Muriithi h/b Gacomo for 3rd and 4th defendants, 1st and 2nd defendants
P.M. NJOROGE
JUDGE