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ELCDismissedNot stated in the judgment (suit filed in 2007)· [2014] KEELC 19 (KLR)

Joseph Warari Gathoga v Charles Okondo Oteki & another [2014] KEELC 19 (KLR)

Environment and Land Court
28 November 2014
JOJ. L. Onguto
1,039 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court spared a stalled 2007 land suit from dismissal, ruling that a one-year delay was excusable—but gave the plaintiff just six months to prosecute or lose the case.

What this practically means

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Executive summary

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The 1st Defendant applied under Order 17 Rule 2(3) of the Civil Procedure Rules for dismissal of the Plaintiff's 2007 suit for want of prosecution, contending that the suit had lain dormant since October 2010 - over three years - and that the continued pendency was onerous in legal fees. The Plaintiff opposed through a Replying Affidavit of its counsel, attributing the delay to the death of the 2nd Defendant in March 2009 and its unsuccessful efforts to substitute the deceased's legal administrator, and affirming continued interest in the claim. The court, restating its own earlier statement in Maina Karanja vs. Maina Karanja, held that the power to dismiss for want of prosecution is discretionary and depends on the length of delay, the reasons for it, and the prejudice to the defendant and the trial itself. On the record, the Plaintiff had in June 2012 filed and served witness lists and statements, which the court held constituted active prosecution, so delay could only run from that date. The application, filed in May 2014, disclosed a delay of only about one year, which the court found not inordinate given the Plaintiff's justified attempts to substitute the deceased 2nd Defendant, whose estate was a necessary party to the claim for cancellation of titles. Applying the overriding objective, the court dismissed the application, directed the Plaintiff to actively prosecute the suit within six months, failing which it would stand dismissed with costs to the 1st Defendant, and ordered the costs of the application to abide the outcome of the main suit.

Key legal issues

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01

Whether the Plaintiff's delay warranted dismissal for want of prosecution

Holding

No. The delay was approximately one year, which was not inordinate given the Plaintiff's justified attempts to substitute the deceased 2nd Defendant's legal representative.

Reasoning

The court found the Plaintiff took steps towards prosecution in June 2012 by filing and serving witness lists and statements, so delay could only run from then. The application was filed in May 2014, just under two years later, yielding a delay of about one year. Given the overriding objective of just resolution and the Plaintiff's efforts at substitution, dismissal was not warranted.

p. 2
02

What constitutes active prosecution of a suit

Holding

Filing and serving witness lists and accompanying witnesses' statements ranks as prosecution of a case.

Reasoning

The court held that merely inviting a case for hearing is not active prosecution, but assembling, filing and serving witness lists and statements amounts to prosecution. Since the Plaintiff did exactly that in June 2012, the allegation that no steps had been taken since October 2010 could not be upheld.

p. 2

Legal principles established

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  • The power to dismiss a suit for want of prosecution is discretionary and is exercised on the inherent powers of the court, considering the length of delay, reasons for delay, and prejudice to the defendant and the trial.
  • Filing and serving witness lists and witness statements constitutes active prosecution of a case.

Court orders

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  1. 1.The 1st Defendant's application to dismiss the suit for want of prosecution is dismissed
  2. 2.The Plaintiff to take the necessary steps to actively prosecute the suit within the next six months, and in default the suit will stand dismissed with costs to the 1st Defendant
  3. 3.The costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(3)
  • Civil Procedure RulesOrder 17
  • Civil Procedure ActOverriding objective

Cases cited (1)

  • Maina Karanja vs. Maina Karanja
    [NBI ELC No. 509 of 2010]
Jurisdiction invoked
Order 17 Rule 2(3) of the Civil Procedure Rules; inherent powers of the court and the overriding objective of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Warari Gathoga v Charles Okondo Oteki & another [2014] KEELC 19 (KLR)", Case Analysis (2014). Not stated in the judgment (suit filed in 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/19/eng@2014-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.