[2022] KEELC 1327 (KLR)
The court found that the reasons advanced by the applicant for failing to prosecute the suit and for the delay in seeking reinstatement were unacceptable. The applicant failed to demonstrate that the delay was excusable or that he was not properly notified of the dismissal proceedings. The court emphasized that it...
Source-derived case information.
- Citation
- [2022] KEELC 1327 (KLR)
- Parties
- Applicant: Suleiman Kassim Mumo; Respondent: Abdulkadir Hussein Kaderdina
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 11 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Suit Dismissed for Want of Prosecution
- Outcome
- application dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Reinstatement of Suit, Dismissal for Want of Prosecution, Delay and Laches, Service of Process, Sub Judice, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suleiman Kassim Mumo
Applicant
Abdulkadir Hussein Kaderdina
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Suit Dismissed for Want of Prosecution
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the delay in filing the application to reinstate the suit was excusable.
- 3 Whether the applicant was properly served with the notice to show cause before dismissal.
Ratio Decidendi
The court found that the reasons advanced by the applicant for failing to prosecute the suit and for the delay in seeking reinstatement were unacceptable. The applicant failed to demonstrate that the delay was excusable or that he was not properly notified of the dismissal proceedings. The court emphasized that it is the plaintiff's responsibility to progress their case and that justice requires consideration of both parties. Given the prolonged and unexplained delay, and the lack of sufficient justification, the court held that the application lacked merit and dismissed it with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 24th July 2019 is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC CASE NO. 11 OF 2014
SULEIMAN KASSIM MUMO................................................................PLAINTIFF/APPLICANT
VERSUS
ABDULKADIR HUSSEIN KADERDINA.....................................DEFENDANT/RESPONDENT
RULING
The application is dated 24th July 2019 and is brought under Sections 1A, 1B (a) and 3A of the Civil Procedure Act 3A of the Civil Procedure Act, Order 10 rule 11 Order 12 Rule 7 and Order 51 rule 1 of the CPR Cap 21 laws of Kenya seeking the following orders;
1. The Court be pleased to reinstate this suit which was dismissed 16th of October 2017.
2. Costs be in the cause.
It is based on the grounds that the suit was set for a notice to show cause why it should not be dismissal for want of prosecution on the 16th of October 2017. That the Applicant did receive a formal notification from the court indicating that this suit will be dismissed if there is no sufficient reasons why it should not via registered mail. The reason he did not receive the communication was because the address used does not belong to him but to a human rights organization, personally he does not have a postal address. The other reason why this matter had not been fixed for hearing by himself was because this file had gone missing and he was unable to get it to fix a hearing date. That it is on 19th June 2019 that he realized that this matter had long be dismissed the court record indicates that both parties were present in court when the suit was being dismissed. The court record will show that he has all along been keen in prosecuting this matter. It is only fair that the application sought herein be allowed.
The Respondent stated that the Application is frivolous and devoid of merit and ought to be dismissed with costs. That the Plaintiff did not show cause why his suit should not be dismissed for want of prosecution. That the Plaintiff is guilty of inordinate, unexplained, unreasonable and inexcusable delay in filing the Application. Whereas the Plaintiff’s suit was dismissed for want of prosecution on 16th October, 2017 the Plaintiff filed the Application to reinstate the suit very late after a lapse of a period of one year and nine months. That the Plaintiff received the Notice to Show Cause why his suit should not be dismissed for want of prosecution but the Plaintiff neither attended court nor showed cause why the suit should not be dismissed. That the Plaintiff is a vexations litigant and the application is an abuse of the court process. That the Plaintiff had filed another suit in the year 2002 being Case No. 404 of 2002 over the same subject matter of this suit. The suit that the Plaintiff is now seeking to reinstate, that is, Case No. 11 of 2014, is sub-judice Case No. 404 of 2002. Annexed hereto and mark “KI” are the Pleadings in Case No. 404 of 2002. That reinstatement of the Plaintiff’s suit will not serve any meaningful purpose but will be a waste of precious judicial time. The Plaintiff should file a fresh suit against the correct persons who own Property Number 4885 (Original Number 4600/1) Section II Mainland North. That he prays that the Plaintiff’s Notice Motion application dated 24th July, 2019 be dismissed with costs.
This court has considered the application. The Applicant stated that the reason he did not receive the communication when the matter was fixed for dismissal was because the address used does not belong to him but to a human rights organization, personally he does not have a postal address. The other reason why this matter had not been fixed for hearing by himself was because this file had gone missing and he was unable to get it to fix a hearing date. That it is on 19th June 2019 that he realized that this matter had long be dismissed. I have perused the court file and find that the matter was dismissed for want of prosecution on the 16th October 2017. It was not until 31st July 2019 when this application was filed. This is an old matter of 2014. Reasons advanced why this application should be granted are unacceptable.
In the case of Utalii Transport Company Ltd & 3 Others vs NIC Bank & Another (2014) eKLR, the court held that it is the primary duty of the Plaintiffs to take steps to progress their case since they are the ones who dragged the Defendant to court. The decision on whether the suit should be reinstated for trial is a matter of justice and it depends on the facts of the case. In Ivita vs Kyumbu (1984) KLR 441, Chesoni J (as he then was), stated that the test is whether the delay is prolonged and inexcusable and if justice will be done despite the delay. Justice is justice for both the Plaintiff and the Defendant. I find this application has no merit and I dismiss it with costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 24TH DAY OF FEBRUARY 2022.
N.A. MATHEKA
JUDGE