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ELCDismissedNot stated in judgment (referred to as related to Nairobi ELCC No. 443 of 2003 (OS))· [2016] KEELC 494 (KLR)

Festus Wanjohi Rukomia v Vincent Gichomo Kamau [2016] KEELC 494 (KLR)

Environment and Land Court
1 July 2016
SOS. Okong'o
1,033 words in judgment
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The bottom line

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A Kenyan court refused to dismiss a land suit delayed for a year, accepting the plaintiff's explanation that related land litigation was still ongoing.

What this practically means

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Executive summary

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The defendant brought a Notice of Motion dated 25th May 2015 seeking dismissal of the plaintiff's suit for want of prosecution with costs. The suit, instituted by plaint dated 21st March 2014 and filed on 25th March 2014, had seen no step by the plaintiff after the defendant filed his defence and counterclaim on 29th May 2014. Prayer 2 of the application was withdrawn with leave at the hearing. The defendant argued that the court had discretion to strike out a suit where no step had been taken for one year and that the plaintiff filed a reply to defence only after the application was lodged. The plaintiff opposed, contending that the suit related to Nairobi ELCC No. 443 of 2003(OS), which concerned the same parcels of land (LR. No. Nairobi Ruaraka Block 31/16 and 31/18), and that he had awaited the outcome of a res judicata application in that matter. The court, applying Order 17 Rule 2 of the Civil Procedure Rules and the principle in Ivita v Kyumbu (1984) KLR 441, accepted the plaintiff's explanation, held the delay was not inordinate, and found the defendant had not shown that justice could no longer be done. The application was dismissed with costs in the cause. Judgment was delivered at Nairobi on 1st July 2016 by S. Okong'o J.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

The application was dismissed; the delay was not inordinate and the plaintiff's reasons were accepted

Reasoning

The court found that although no step had been taken by the plaintiff for one year, the plaintiff had explained the delay by reference to related proceedings in ELCC No. 443 of 2003(OS) concerning the same subject land. The court held the delay was not inordinate and the defendant had not shown that justice could no longer be done. Following Ivita v Kyumbu, dismissal was not warranted.

p. 2

Legal principles established

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  • Even where there is prolonged delay, a court will not dismiss a suit for want of prosecution where it is satisfied with the plaintiff's excuse for the delay and justice can still be done despite the delay
  • A plaintiff's delay of one year without any step renders a suit liable to dismissal for want of prosecution under Order 17 Rule 2, but dismissal is discretionary and depends on the reasonableness of the excuse and whether justice can still be done

Court orders

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  1. 1.Prayer 2 of the defendant's application withdrawn and allowed to be withdrawn
  2. 2.The defendant's Notice of Motion dated 25th May 2015 seeking dismissal of the suit for want of prosecution is dismissed
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2

Cases cited (1)

  • Ivita vs. Kyumbu
    (1984) KLR 441
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, "Festus Wanjohi Rukomia v Vincent Gichomo Kamau [2016] KEELC 494 (KLR)", Case Analysis (2016). Not stated in judgment (referred to as related to Nairobi ELCC No. 443 of 2003 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/494/eng@2016-07-01

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