[2018] KEELC 4391 (KLR)
The court found that the delay in prosecuting the Defendants' application for stay of execution was not attributable to the Defendants, but rather to the absence of a judge to hear Environment and Land matters in Machakos following the Court of Appeal decision in Karisa Chego & Another vs. R. The court held that it...
Source-derived case information.
- Citation
- [2018] KEELC 4391 (KLR)
- Parties
- Plaintiff: Stephen Mbondo; Plaintiff: Charles M. Muli; Plaintiff: George K. Chelagat; Plaintiff: John K. Mwando; Plaintiff: David Ntaragwi; Plaintiff: Gabriel K. Musyoki; Defendant: The Headmaster Mlolongo Primary; Defendant: The Chairman & Committee, Mlolongo Primary School
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 46 of 1995
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Dismissal for Want of Prosecution, Stay of Execution, Delay in Prosecution, Court Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stephen Mbondo
Plaintiff
Charles M. Muli
Plaintiff
George K. Chelagat
Plaintiff
John K. Mwando
Plaintiff
David Ntaragwi
Plaintiff
Gabriel K. Musyoki
Plaintiff
The Headmaster Mlolongo Primary
Defendant
The Chairman & Committee, Mlolongo Primary School
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the Defendants' application dated 26th January, 2015 should be dismissed for want of prosecution.
- 2 Whether the delay in prosecuting the Defendants' application was justified due to court administrative issues.
Ratio Decidendi
The court found that the delay in prosecuting the Defendants' application for stay of execution was not attributable to the Defendants, but rather to the absence of a judge to hear Environment and Land matters in Machakos following the Court of Appeal decision in Karisa Chego & Another vs. R. The court held that it would be unjust to dismiss the Defendants' application for want of prosecution under these circumstances. The Plaintiffs' application to dismiss was therefore denied, and the Defendants were granted an opportunity to prosecute their pending application.
Court Disposition
application dismissed
Orders
- The Plaintiffs' application dated 8th May, 2017 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 46 OF 1995
STEPHEN MBONDO...............................................................1ST PLAINTIFF
CHARLES M. MULI...............................................................2ND PLAINTIFF
GEORGE K. CHELAGAT......................................................3RD PLAINTIFF
JOHN K. MWANDO................................................................4TH PLAINTIFF
DAVID NTARAGWI................................................................5TH PLAINTIFF
GABRIEL K. MUSYOKI........................................................6TH PLAINTIFF
VERSUS
THE HEADMASTER MLOLONGO PRIMARY..............1ST DEFENDANT
THE CHAIRMAN & COMMITTEE
MLOLONGO PRIMARY SCHOOL.................................2ND DEFENDANT
RULING
1. In the Application dated 8th May, 2017, the Plaintiffs are seeking for the following orders:
a. This Honourable Court be pleased to dismiss the Defendants/Respondents’ Application dated 26th January, 2015 for want of prosecution.
b. Costs of this Application be borne by the Defendants/Respondents.
2. The Application is premised on the grounds that the Defendants filed an Application dated 26th January, 2015 seeking for a stay of execution of the warrants of attachment of moveable property; that the Application was fixed for hearing on 4th May, 2015 and that since that day, the Defendants have not taken any steps to prosecute it.
3. In response , the Defendant stated that the Application was not heard on 4th May, 2015 because the court was not sitting; that subsequently, the file could not be traced for fixing of the Application and that the Plaintiffs are seeking to enforce an award after twenty (20) years from the date on which the cause of action arose.
4. The parties filed brief written submissions which I have considered.
5. The record shows that the Application dated 26th January, 2015 seeking for stay of execution of the warrant of attachment of the Respondents’ moveable was fixed for hearing by the Deputy Registrar on 4th May, 2015. On the said date, the court was not sitting although the Applicants’ advocate was in court.
6. The Deputy Registrar then fixed the matter for hearing on 29th June, 2015. The record does not indicate what happened on 29th June, 2015. The matter then went into a lull until when the current Application was filed.
7. The Defendant has deponed that his advocate was unable to trace the file for the purpose of fixing the said Application for hearing.
8. Indeed, I am aware that after the Court of Appeal delivered its decision in the case of Karisa Chego & Another vs. R. Malindi Civil Appeal No. 44, 45 and 76 of 2014 on 8th May, 2015, the Judges of the High Court stopped hearing all the pending matters involving the Environment and Land. Machakos was one of the courts that remained without a Judge to handle Environment and Land matters after the said decisions.
9. In view of that, the Defendant cannot be blamed for not fixing the Application dated 26th January, 2015 for hearing between May, 2015 when the Karisa Chego decision was rendered and January, 2017 when a Judge was posted to the station.
10. In the circumstances, I shall give to the Defendants an opportunity to prosecute the Application dated 26th January, 2015.
11. For those reasons, I dismiss the Application dated 8th May, 2017 with no order as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF FEBRUARY, 2018.
O.A. ANGOTE
JUDGE