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ELCPartially AllowedNot stated in extract (suit filed 2nd June 2010, Nakuru)· [2014] KEELC 360 (KLR)

Laly Farm Limited v Attorney General & 4 others [2014] KEELC 360 (KLR)

High Court of Kenya
16 May 2014
LWL N Waithaka
691 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated 27th May 2013 by the 4th and 5th defendants in a suit filed on 2nd June 2010, seeking dismissal of the suit for want of prosecution and removal of cautions registered by the 2nd and 3rd defendants over land parcels Nakuru/Moi Ndabi/1322 and Nakuru/Moi Ndabi/1267. The application, brought under Order 17 Rule 2, Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Sections 72 and 73 of the Land Registration Act, was supported by an affidavit of John Kariuki of Kinyanjui Njuguna & Company Advocates. The applicants contended that the plaintiff's injunction application had failed to proceed on several hearing dates because the plaintiff was not ready, and that the plaintiff had taken no steps for over three years while enjoying orders akin to an injunction. Although served, the plaintiff did not respond or appear. The court, per L N Waithaka J, applied the principle in Victory Construction Company vs A. N. Duggan that dismissal for want of prosecution should not be granted where the suit can be heard without delay, but found the plaintiff had lost interest having taken no action since 2012. Prayer 1 was granted and the suit dismissed with costs to the 4th and 5th defendants. The prayer to remove the cautions was declined because no affidavit of service proved service on the respondents, who thus had no opportunity to respond.

Key legal issues

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01

Dismissal of suit for want of prosecution

Holding

The suit was dismissed because the plaintiff took no action to move the court since 2012, showing loss of interest

Reasoning

The court applied the principle from Victory Construction Company vs A. N. Duggan that dismissal for want of prosecution should be approached with caution. However, on the facts, the plaintiff had taken no step to set the suit down since 2012, over three years after filing. The court was persuaded the plaintiff had lost interest in the suit and dismissed it with costs to the 4th and 5th defendants.

p. 2
02

Removal of cautions registered over the suit properties

Holding

The court declined to order removal of the cautions because there was no proof of service of the application on the respondents

Reasoning

Although the applicants sought vacation of the cautions registered by the 2nd and 3rd defendants over the suit properties, no affidavit of service was filed proving that the 1st, 2nd and 3rd respondents had been served with the application. The court held it could not properly determine the prayer without those parties having an opportunity to respond.

p. 2

Legal principles established

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  • The court should be slow to dismiss a suit for want of prosecution if the suit can be heard without further delay, if the defendant will suffer no hardship, and if there has been no flagrant and culpable inactivity

Court orders

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  1. 1.The plaintiff's suit is dismissed for want of prosecution with costs to the 4th and 5th defendants
  2. 2.Prayer for removal of the cautions over the suit properties is declined

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 3A
  • Land Registration ActSections 72 and 73

Cases cited (1)

  • Victory Construction Company vs. A. N. Duggan
    (1962) E.A. 697
Jurisdiction invoked
Section 3A of the Civil Procedure Act; Order 17 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 72 and 73 of the Land Registration 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, "Laly Farm Limited v Attorney General & 4 others [2014] KEELC 360 (KLR)", Case Analysis (2014). Not stated in extract (suit filed 2nd June 2010, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/360/eng@2014-05-16

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