[2019] KEELC 658 (KLR)
The court found that although the plaintiff had not filed an affidavit to support the explanation for delay, it exercised its discretion to give the plaintiff the benefit of the doubt. The court declined to dismiss the suit for want of prosecution but ordered the plaintiff to pay attendance costs to the 2nd...
Source-derived case information.
- Citation
- [2019] KEELC 658 (KLR)
- Parties
- Plaintiff: Thathini Development Co. Ltd; Defendant: Hanif Iqbaz Khan; Defendant: Mombasa County Government; Defendant: Director General/NEMA
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 299 of 2016
- Procedural Posture
- Notice to Show Cause / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff given benefit of doubt with directions to proceed.
- Judges
- MA Silau
- Legal Topics
- Want of Prosecution, Dismissal of Suit, Mining Rights, Land Ownership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thathini Development Co. Ltd
Plaintiff
Hanif Iqbaz Khan
Defendant
Mombasa County Government
Defendant
Director General/NEMA
Defendant
Procedural Posture
Notice to Show Cause / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 (1).
- 2 Whether the plaintiff has provided sufficient explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that although the plaintiff had not filed an affidavit to support the explanation for delay, it exercised its discretion to give the plaintiff the benefit of the doubt. The court declined to dismiss the suit for want of prosecution but ordered the plaintiff to pay attendance costs to the 2nd defendant and directed the plaintiff to take steps to move the case forward, warning that failure to do so would result in reconsideration of dismissal. The court emphasized the importance of prosecuting cases diligently and the need for parties to support their explanations with proper evidence, but ultimately allowed the suit to continue in the interests of justice.
Court Disposition
Suit not dismissed; plaintiff given benefit of doubt with directions to proceed.
Orders
- Plaintiff to pay attendance costs of the hearing of the notice to the 2nd defendant.
- Plaintiff must take steps to move the case forward or risk dismissal upon further notice.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MOMBASA
ELC NO. 299 OF 2016
THATHINI DEVELOPMENT CO. LTD.................................PLAINITFF
VERSUS
HANIF IQBAZ KHAN ...................................................1ST DEFENDANT
MOMBASA COUNTY GOVERNMENT.....................2ND DEFENDANT
DIRECTOR GENERAL/NEMA...................................3RD DEFENDANT
RULING
(Notice to show cause why suit should not be dismissed for want of prosecution; explanation being that the plaintiff had internal wrangles; no affidavit filed to support these claims but benefit of doubt given; plaintiff directed to take steps to move the case)
1. This suit was filed on 14 October 2016 through which the plaintiff averred to be the owner of the land parcel 546 Sec II/MN. She pleaded that the 1st defendant has illegally invaded the land and is harvesting murram. The plaintiff pleaded that the 2nd defendant illegally issued to the 1st defendant a permit for extraction of murram and that the 3rd defendant has issued a fraudulent mining licence. In the suit the plaintiff sought orders to permanently stop any further mining, general and punitive damages and costs. Together with the plaint, the plaintiff filed an application for injunction which was heard and ruling delivered on 1 November 2016. Since then the plaintiff has not taken any step to move the matter.
2. Given that position, this court served the plaintiff with a notice to show cause why the suit should not be dismissed for want of prosecution pursuant to the provisions of Order 17 Rule 2 (1) which provides that where no step is taken within one year, the court may give notice for the plaintiff to show cause why the case should not be dismissed for want of prosecution.
3. At the hearing of the notice, Mr. Mwaniki, learned counsel for the plaintiff, submitted from the bar that the plaintiff is a limited liability company which was embroiled in wrangles which resulted in a suit Mombasa HCCC No. 362 of 2014. He stated that all issues have now been resolved and the Board is properly constituted. He has stated that the plaintiff is desirous of prosecuting the case.
4. Mr. Gathu, learned counsel holding brief for Mr. Kibara for the 2nd defendant, pointed out that no affidavit has been sworn.
5. There is no question that this matter has not been moving. No replying affidavit has been filed to support the claims of counsel on record for the plaintiff. Ideally, one should have been filed. Nonetheless, I will give benefit of doubt to the plaintiff. I will not dismiss the suit but the plaintiff will pay to the 2nd defendant attendance costs of the hearing of this notice and must move her case or else this court will reserve its discretion to revisit the notice to show cause.
6. I will give further directions after the delivery of this ruling.
7. Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA this 12th day of November 2019.
MUNYAO SILA
JUDGE
IN THE PRESENCE OF:
Mr. Chebukaka holding brief for Mr Mwaniki for the plaintiff.
Ms. Nyaga holding brief for Mr Kibara for 2nd defendant.
Court assistant; David Koitamet.