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ELCOtherNot stated in judgment· [2015] KEELC 358 (KLR)

Municipal Council of Nyeri v David Ngunjiri Muriithi & 2 others [2015] KEELC 358 (KLR)

High Court of Kenya
29 June 2015
781 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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The defendant applied by Notice of Motion dated 16th December 2014 under Order 17 Rule 2 of the Civil Procedure Rules for dismissal of the suit for want of prosecution and costs, supported by an affidavit of his advocate, Charles Wahome Gikonyo, who deponed that over three years had passed since the suit was last set down for hearing on 15th November 2011, indicating the plaintiffs had lost interest. The plaintiffs opposed through Grounds of Opposition dated 22nd May 2015, contending the application was frivolous and an abuse of process, that a part-heard matter could not be dismissed, and that non-compliance with Order 11 by both parties and a missing court file explained the inactivity. The court perused the record and found that after Wakiaga J declined the plaintiffs' injunction application in a ruling dated 10th February 2012, only the defendant's advocates had attempted to take hearing dates, and there was no record correspondence supporting the claim of a missing file. Nonetheless, the court held that the plaintiffs' attendance in person and counsel's spirited participation demonstrated continued interest in prosecuting the suit. The court declined to dismiss the suit outright, instead granting strict timelines: 30 days for both parties to file and serve lists of documents and witness statements, filing of the pretrial questionnaire and joint issues within the same period, and fixing of the matter for mention within 60 days failing which the suit would stand dismissed. Costs of the application were awarded to the defendant. Judgment delivered at Nyeri on 29th June 2015.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution after over three years of inactivity since 15th November 2011

Holding

The application for dismissal was declined; the court instead granted the plaintiffs a final opportunity to prosecute the suit within strict timelines, with automatic dismissal if they fixed the matter for mention within 60 days

Reasoning

The court acknowledged the delay and found the plaintiffs' explanations unsatisfactory. However, the plaintiffs' attendance in person and their counsel's participation in the application demonstrated continued interest in the suit. Balancing the delay against that demonstrated interest, the court exercised discretion to allow prosecution of the suit within strict timelines rather than dismiss it outright.

p. 2
02

Whether the plaintiffs' claim that the court file had gone missing justified the delay

Holding

The court found no evidence in the record supporting the claim that the file had gone missing

Reasoning

The court perused the record and noted that since the ruling of Wakiaga J dated 10th February 2012 declining the injunction, only the defendant's advocates had attempted to take hearing dates, on 29th January 2015 and 19th March 2015. There was no correspondence in the court record supporting the plaintiffs' assertion that the file had gone missing from the registry.

p. 2

Legal principles established

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  • Under Order 17 Rule 2(1) of the Civil Procedure Rules, if no step is taken by either party for one year, the court may give notice to the parties to show cause why the suit should not be dismissed; and under Rule 2(3)(1) any party to a suit may apply for its dismissal

Court orders

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  1. 1.The plaintiffs are granted 30 days within which to file and serve their list of documents and witness statements
  2. 2.The defendant is granted an equal period after receipt to file and serve his list of documents and witness summons
  3. 3.Pretrial questionnaire and joint set of issues to be filed within the same period
  4. 4.The plaintiff is directed to fix the matter for mention within 60 days failure of which the suit shall stand dismissed
  5. 5.Costs of the application awarded to the defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Civil Procedure RulesOrder 17 Rule 2(3)(1)
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Order 17 Rule 2 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, "Municipal Council of Nyeri v David Ngunjiri Muriithi & 2 others [2015] KEELC 358 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/358/eng@2015-06-29

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