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ELCDismissedNot stated in the judgment as provided· [2015] KEELRC 313 (KLR)

Charles Githinji Murage v Munjuru Murage & another [2015] KEELRC 313 (KLR)

Environment & Land Court
21 October 2015
MSMUNYAO SILA
1,353 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 2nd defendant in an adverse possession suit applied on 17 March 2015, under Order 17 Rule 2 and Order 40 of the Civil Procedure Rules, 2010, for dismissal of the plaintiff's Originating Summons dated 9 December 2013 and the accompanying application, on the ground that neither had been served since filing. At hearing the application was narrowed to two prayers: dismissal of the plaintiff's application and of the Originating Summons. The suit, filed on 11 December 2013 under Order 37 Rule 7, sought a declaration of adverse possession over Kinamba Mithiga Block 2/127, registered in the 2nd defendant's name, the plaintiff alleging a land exchange agreement involving his late father and continuous quiet possession since before a 1999 transfer. The plaintiff replied that he had been unable to trace the defendants for service; counsel for the plaintiff argued the application was defective as it was drawn under Order 17. The court agreed the application was framed under Order 17 Rule 2, and held that since the matter had been in court on 2 July 2014, one year had not lapsed. Further, even treating the application as one for want of service, Order 5 Rule 2(7) permits dismissal without notice only after 24 months from issue of summons, a period not yet elapsed. The application was dismissed with costs, and the adverse possession suit proceeds.

Key legal issues

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01

Whether the application could succeed under Order 17 Rule 2 (dismissal for want of prosecution)

Holding

It could not; the application was indeed brought under Order 17 Rule 2 and one year had not lapsed since the matter was last in court (2 July 2014).

Reasoning

Order 17 Rule 2 permits dismissal where no step has been taken for one year. The matter was in court on 2 July 2014 when the plaintiff sought extension of interim injunction orders, and the application was filed on 18 March 2015, within the one-year period. Dismissal being drastic, the court declined to dismiss.

p. 3
02

Whether the suit could be dismissed for want of service of summons under Order 5 Rule 2

Holding

Even assuming the application raised want of service, it could not succeed because the summons had not been in existence for 24 months from issue.

Reasoning

The suit was commenced by Originating Summons under Order 37 Rule 7, and Order 37 Rule 4 imports Order 5 service provisions. Order 5 Rule 2(7) allows dismissal without notice only after 24 months from issue of the original summons. The suit was filed on 11 December 2013 and two years had not lapsed by the date of the application.

p. 4

Legal principles established

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  • A suit may only be dismissed for want of prosecution under Order 17 Rule 2 where no step has been taken for one year.
  • A court may dismiss a suit without notice for want of service of summons only after 24 months from issue of the original summons under Order 5 Rule 2(7).
  • Dismissal of a suit is a drastic remedy to be granted cautiously.

Court orders

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  1. 1.The 2nd defendant's application dated 17 March 2015 seeking dismissal of the suit and the plaintiff's application dated 9 December 2013 is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 17 Rule 2
  • Civil Procedure Rules, 2010Order 40 Rule 2, 3(3) and 4(1) and (4)
  • Civil Procedure Rules, 2010Order 37 Rule 7
  • Civil Procedure Rules, 2010Order 37 Rule 4
  • Civil Procedure Rules, 2010Order 5 Rule 1(6) and Rule 2
Jurisdiction invoked
Civil Procedure Rules, 2010 (Order 17 Rule 2; Order 40 Rules 2, 3(3) and 4(1) and (4); Order 37 Rule 7; Order 5 Rule 2)

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, "Charles Githinji Murage v Munjuru Murage & another [2015] KEELRC 313 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/860/eng@2015-10-21

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