[2021] KEELC 3189 (KLR)
The court found that the plaintiff had taken a step to prosecute the suit by obtaining a pretrial date before the applications for dismissal were filed. Therefore, the statutory requirement of one year of inactivity under Order 17 Rule 2 had not been met. The applications for dismissal were thus premature. The court...
Source-derived case information.
- Citation
- [2021] KEELC 3189 (KLR)
- Parties
- Plaintiff: Wakf Commissioners of Kenya; Defendant: Victor Waudi Okoth (as administrator of the Estate of Joseph Okoth Waudi-Deceased); Defendant: Casablanca Holdings Limited; Defendant: National Bank of Kenya; Defendant: Land Registrar, Mombasa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 283 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Applications for Dismissal for Want of Prosecution
- Outcome
- applications for dismissal for want of prosecution dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Pretrial Procedure, Service of Process, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wakf Commissioners of Kenya
Plaintiff
Victor Waudi Okoth (as administrator of the Estate of Joseph Okoth Waudi-Deceased)
Defendant
Casablanca Holdings Limited
Defendant
National Bank of Kenya
Defendant
Land Registrar, Mombasa
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Applications for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether the plaintiff had taken sufficient steps to prosecute the suit before the applications for dismissal were filed.
- 3 Whether the applicants were justified in filing the applications for dismissal at the material time.
Ratio Decidendi
The court found that the plaintiff had taken a step to prosecute the suit by obtaining a pretrial date before the applications for dismissal were filed. Therefore, the statutory requirement of one year of inactivity under Order 17 Rule 2 had not been met. The applications for dismissal were thus premature. The court also noted that while service of the pretrial date on all parties was not entirely clear, the applicants could not be faulted for believing there was inactivity. Nonetheless, the threshold for dismissal for want of prosecution was not satisfied, and the applications were dismissed without an order as to costs.
Court Disposition
applications for dismissal for want of prosecution dismissed
Orders
- The applications dated 28 January 2020 and 8 May 2020 for dismissal of the suit for want of prosecution are dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA
ELC NO. 283 OF 2018
WAKF COMMISSIONERS OF KENYA............................................PLAINTIFF
-VERSUS-
VICTOR WAUDI OKOTH.........................................................1ST DEFENDANT
(Sued as the administrator of the Estate of Joseph Okoth Waudi-Deceased)
CASABLANCA HOLDINGS LIMITED...................................2ND DEFENDANT
NATIONAL BANK OF KENYA.................................................3RD DEFENDANT
LAND REGISTRAR, MOMBASA.............................................4TH DEFENDANT
RULING
(Applications for dismissal of suit for want of prosecution; first application by the 1st and 2nd defendant, second application by the 3rd defendant; applications dismissed)
1. There are two applications before me. The first is the application filed on 28 January 2020 by the 1st and 2nd defendants. The second is the application filed on 8 May 2020 by the 3rd defendant. Both applications seek orders that the plaintiff’s suit be dismissed for want of prosecution. The plaintiff has opposed the applications.
2. By way of background, this suit was instituted by way of a plaint, filed on 5 December 2018. It is the pleading of the plaintiff, that she is the registered owner of the parcel of land known as Mombasa/Block XXI/226 (hereinafter, ‘the suit land’), and in the year 1992, the suit land was subleased to the 1st defendant. The plaintiff has pleaded that the defendants are undertaking fraudulent and deceitful dealings over the suit contrary to the Wakf Commissioners Act and the tenets and principles of Islamic law. For these reasons the plaintiff seeks inter alia orders to permanently restrain the defendants from interfering with the suit land. It will be recalled that the applications herein want to have this suit dismissed for want of prosecution.
3. I have gone through the record. As mentioned, the plaint was filed on 5 December 2018. I can see from the record that on 6 December 2019, the plaintiff took a date of 25 June 2020 for pretrial. Before that date could reach, the two applications were filed.
4. The legal framework on dismissal of suit for want of prosecution is found in Order 17 Rule 2 which provides as follows:-
“2. (1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
(4) The court may dismiss the suit for non-compliance with any direction given under this Order.”
5. I will not say much in this ruling because I can see that by the time the two applications were filed, the plaintiff had already taken steps to move the matter by taking a date for pretrial. I think it is only after the date of 25 June 2020 that was given for pretrial, and one year lapsed, that the applicants would have been entitled to file applications for dismissal of the suit for want of prosecution. I am not therefore persuaded that one year of inactivity had lapsed to entitle the applicants filed the subject applications.
6. What is not clear to me is whether the date for pretrial was ever served on all parties before the two applications were filed. From the replying affidavit, I can see that counsel for the 1st and 2nd defendants was served with the mention notice after they had already filed their application on 28 January 2020. It is not very clear to me when, if at all, counsel for the 3rd defendant was served. The applicants, cannot be held at fault for thinking that the plaintiff had gone to sleep thus their applications. For this reason, in as much as I dismiss the two applications, I will not make any order as to costs.
7. Orders accordingly.
DATED AND DELIVERED THIS 21ST DAY OF MAY 2021.
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT MOMBASA