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ELCAllowedNotice of motion dated 2/4/2016· [2016] KEELC 612 (KLR)

Pkiech Chisimaya v Limakorwai Achipa [2016] KEELC 612 (KLR)

Environment and Land Court
29 August 2016
EOE. OBAGA
812 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A land suit sitting idle for nine years was dismissed because the plaintiff offered no evidence supporting his excuse for the delay.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 2/4/2016 in which the defendant sought dismissal of the plaintiff's land suit for want of prosecution under Order 17 Rule 2(1) and (3) of the Civil Procedure Rules. The suit had been filed on 8/12/2006 and a defence filed on 17/1/2007, but the plaintiff took no step to prosecute the case for over nine years. The plaintiff opposed the application, conceding the delay but attributing it to prolonged illness and the need to gather witnesses in a land matter, arguing that the defendant, who was in occupation of the disputed land, would suffer no prejudice. The court held that the only issue was whether sufficient cause for the delay had been shown. It found the illness claim wholly unsupported by evidence - no medical documents were produced. The court also examined the plaintiff's conduct, noting that a Chepareria Land Disputes Tribunal had ruled in the defendant's favour, that its verdict had been adopted as a judgment of the court, and that the plaintiff had failed to appeal to the Provincial Appeals Committee or seek judicial review as required by the repealed Land Disputes Tribunal Act, instead attempting to challenge the Tribunal's decision through a fresh suit. Concluding that no sufficient cause was shown, the court allowed the application with costs and dismissed the plaintiff's suit with costs to the defendant.

Key legal issues

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01

Whether sufficient cause was shown to avoid dismissal for want of prosecution under Order 17 Rule 2(1)

Holding

The suit was dismissed because the respondent's explanation of sickness was unsupported by any evidence and the delay of over nine years was unexplained.

Reasoning

Order 17 Rule 2(1) obliges the court to dismiss a suit where no step has been taken for one year, unless the court is satisfied with the reasons for the delay. The respondent conceded the delay but attributed it to illness, yet produced no medical documents to substantiate that claim. The court also considered the respondent's prior conduct, noting that he had filed the suit in an attempt to challenge a Land Disputes Tribunal verdict through a separate suit rather than the appeal procedure prescribed by the repealed Act, which weighed against excusing the delay.

p. 2

Legal principles established

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  • A suit can only be spared dismissal for want of prosecution if sufficient cause for the delay is shown, and the reason for delay must be supported by evidence.

Court orders

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  1. 1.The application by the applicant is allowed with costs
  2. 2.The respondent's suit is dismissed with costs to the defendant/respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1) and (3)
  • Land Disputes Tribunal Act No. 18 of 1990 (repealed)
Jurisdiction invoked
Order 17 Rule 2(1) and (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, "Pkiech Chisimaya v Limakorwai Achipa [2016] KEELC 612 (KLR)", Case Analysis (2016). Notice of motion dated 2/4/2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/612/eng@2016-08-29

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