[2018] KEELC 3379 (KLR)
The court found that although the plaintiff had not complied with the order to serve suit documents within 21 days, the court had not previously indicated that non-compliance would result in dismissal. Therefore, the plaintiff should be afforded an opportunity to explain the failure to serve the 2nd defendant and to...
Source-derived case information.
- Citation
- [2018] KEELC 3379 (KLR)
- Parties
- Plaintiff: Stephen Murungi; Defendant: Mugambi Nkiruta; Defendant: Meru County Government
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 91 of 2017
- Procedural Posture
- Land and Property Suit / Interlocutory Ruling on Application to Dismiss for Non Service
- Outcome
- Application for dismissal of suit denied; plaintiff granted opportunity to explain non-service and to prosecute the suit.
- Legal Topics
- Service of Process, Dismissal of Suit, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Murungi
Plaintiff
Mugambi Nkiruta
Defendant
Meru County Government
Defendant
Procedural Posture
Land and Property Suit / Interlocutory Ruling on Application to Dismiss for Non Service
Legal Issues
- 1 Whether the plaintiff failed to comply with court orders regarding service of suit documents.
- 2 Whether the suit should be dismissed for non-compliance and non-service upon the 2nd defendant.
Ratio Decidendi
The court found that although the plaintiff had not complied with the order to serve suit documents within 21 days, the court had not previously indicated that non-compliance would result in dismissal. Therefore, the plaintiff should be afforded an opportunity to explain the failure to serve the 2nd defendant and to proceed with prosecuting the suit. Dismissal at this stage would be premature and contrary to the principles of justice and fair hearing.
Court Disposition
Application for dismissal of suit denied; plaintiff granted opportunity to explain non-service and to prosecute the suit.
Orders
- Plaintiff is given an opportunity to explain why he is unable to effect service upon the 2nd defendant.
- Plaintiff is to prosecute the suit.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC NO. 91 OF 2017
STEPHEN MURUNGI...................................PLAINTIFF
VERSUS
MUGAMBI NKIRUTA..........................1ST DEFENDANT
MERU COUNTY GOVERNMENT....2ND DEFENDANT
RULING
1. On 19/4/2018, Counsel for 1st defendant stated that there was no compliance on the part of the plaintiff in respect of the courts orders of 10/10/2017, that they have never been served with summons to enter appearance and that the Deputy Registrar could not dismiss the suit as this was a substantive order. 1st defendant was seeking for the dismissal of the suit.
2. I have perused the record and I find that the application of 3. 5.2017 was withdrawn while the one of 13. 3.2017 was dismissed. The court then directed plaintiff to serve all the suit documents within 21 days. However the court did not intimate that it will dismiss the suit if there was no compliance. As such plaintiff is given an opportunity to explain why he is unable to effect service upon 2nd defendant, and to prosecute the suit.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 16th MAY, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Kiogora for plaintiff present
Mwiti holding brief for Mwenda Mwarania for 1st defendant present
2nd defendant in person absent
HON. LUCY. N. MBUGUA
ELC JUDGE