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ELCAllowedNot stated in the judgment (Originating Summons filed 5th June 2008)· [2014] KEELC 482 (KLR)

Thoya Kiti Thoya & another v Silas Mzungu Mzungu Chitimbwi & 4 others [2014] KEELC 482 (KLR)

Environment and Land Court (High Court of Kenya)
14 February 2014
OAO. A. Angote
888 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan land suit filed in 2008 was dismissed in 2014 because the plaintiffs sat on it for years, despite repeated court deadlines.

What this practically means

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Executive summary

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The 1st Defendant in an Originating Summons concerning land parcels Kilifi/Mtondia/400 and Kilifi/Mtondia/406 filed an application dated 13th September 2013 seeking that the suit be struck out for want of prosecution or for failure to take action for one year, with costs to the applicant. The application, brought under Order 5 Rule 2(7) and Order 17 Rule 2(3) of the Civil Procedure Rules, was supported by the applicant's advocate's affidavit, which noted that the suit was filed on 5th June 2008; that the 1st Plaintiff died on 28th July 2011; that the 2nd Plaintiff had taken no action; and that summons had not been served on the 3rd, 4th and 5th Defendants. The 2nd Plaintiff's advocate admitted the delays, attributing them to the striking out of the suit against one defendant, and conceded that the 4th Defendant could not be traced for service. The court traced the procedural history: appearance by the 1st and 2nd Defendants in June 2008; the partial striking out by Omondi J on 5th October 2009; directions of 14th July 2011 requiring service within 30 days; and a consent of 13th March 2013 requiring service within two months, none of which was complied with. Holding that the Plaintiffs had been given two chances and offered no plausible explanation for their inaction, and that defendants could not be held at ransom regarding the use of the suit property, the court on 14th February 2014 allowed the application as prayed, striking out/dismissing the suit, with costs to the 1st Defendant.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(3)

Holding

Yes. The Plaintiffs failed to prosecute the suit or effect service despite being given two chances and court directions, with no plausible explanation offered.

Reasoning

The suit was filed in June 2008. After the ruling of Omondi J in October 2009, the Plaintiffs never fixed the Originating Summons for hearing. Court directions of 14th July 2011 and a consent of 13th March 2013 to serve summons were not complied with. There was no evidence of service on the 4th and 5th Defendants and no plausible explanation for the inaction, justifying dismissal for want of prosecution.

p. 2
02

Validity and service of summons

Holding

Summons were valid for twelve months in the first instance; there was no evidence that the 4th and 5th Defendants were served.

Reasoning

The court applied Order 5 Rule 2(7) on the validity of summons and observed that no evidence showed service on the 4th, 5th and 6th Defendants; the Plaintiffs' advocate admitted inability to trace the 4th Defendant and there was no proof of service on the 5th Defendant.

p. 2

Legal principles established

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  • Summons remain valid in the first instance for twelve months, and in any suit in which no step is taken for one year, any party may apply for its dismissal.
  • Plaintiffs who fail to prosecute their claim expeditiously after being given chances cannot be permitted to hold defendants at ransom regarding use of the suit property.

Court orders

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  1. 1.The 1st Defendant's Application dated 13th September 2013 allowed as prayed, being the striking out of the suit for want of prosecution / failure to take action for one year

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 2(7)
  • Civil Procedure RulesOrder 17 Rule 2(3)
Jurisdiction invoked
Order 5 Rule 2(7) and Order 17 Rule 2(3) of the Civil Procedure Rules

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, "Thoya Kiti Thoya & another v Silas Mzungu Mzungu Chitimbwi & 4 others [2014] KEELC 482 (KLR)", Case Analysis (2014). Not stated in the judgment (Originating Summons filed 5th June 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/482/eng@2014-02-14

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