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ELCDismissedEnvironment & Land Case 258 of 2012· [2016] KEELC 1305 (KLR)

Muchai v Makeri (Environment & Land Case 258 of 2012) [2016] KEELC 1305 (KLR)

High Court of Kenya
28 October 2016
MGMARY M. GITUMBI
1,004 words in judgment
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The bottom line

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Kenya's High Court refused to dismiss a stalled lawsuit because the plaintiff's delay was explained by pregnancy and a missing court file.

What this practically means

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Executive summary

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The Defendant filed a Notice of Motion dated 27th January 2014 seeking dismissal of the suit for want of prosecution, arguing that since the filing and service of a Replying Affidavit in June 2012, the Plaintiff had taken no steps to prosecute the suit. The Plaintiff opposed the application through a Replying Affidavit of its counsel, Catherine N. Njuguna, who explained that a difficult pregnancy between August 2012 and April 2013, followed by maternity leave ending in September 2013, prevented her from fixing the suit for hearing; she produced medical evidence. She further explained that attempts to fix the matter in early 2014 failed because the court file could not be traced, and that her office was only served with the application on 22nd March 2014. The court identified the sole issue as whether the suit should be dismissed for want of prosecution, governed by Order 17 Rule 2(1) and 2(3) of the Civil Procedure Rules, 2010. Relying on Ivita v Kyumbu [1984] KLR 441 and E. T. Monks and Co Ltd v Evans (1985) KLR 584, the court held that dismissal is warranted only where the delay is prolonged and inexcusable and justice cannot nonetheless be done. Satisfied by the medical evidence and counsel's explanation, the court found the delay not inexcusable and held it improper to dismiss the suit. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

No - the delay was explained and excusable; the application was dismissed

Reasoning

The court applied the Ivita v Kyumbu test: dismissal is warranted only where the delay is prolonged and inexcusable and justice cannot be done despite it. Counsel for the plaintiff produced medical evidence showing a difficult pregnancy from August 2012 to April 2013 and subsequent maternity leave to September 2013, and explained attempts to fix the matter in 2014 when the court file could not be traced. The court was satisfied with this excuse and found the delay not inexcusable.

p. 2

Legal principles established

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  • A suit should not be dismissed for want of prosecution where the plaintiff offers a satisfactory excuse for the delay, even if the delay is prolonged

Court orders

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  1. 1.The Notice of Motion dated 27th January 2014 seeking dismissal of the suit for want of prosecution is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 17 Rule 2(1)
  • Civil Procedure Rules, 2010Order 17 Rule 2(3)

Cases cited (2)

  • Ivita vs. Kyumbu
    [1984] KLR 441
  • E. T. Monks and Co Ltd v Evans
    (1985) KLR 584
Jurisdiction invoked
Order 17 Rule 2(1) and 2(3) of the Civil Procedure Rules, 2010

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, "Muchai v Makeri (Environment & Land Case 258 of 2012) [2016] KEELC 1305 (KLR)", Case Analysis (2016). Environment & Land Case 258 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1305/eng@2016-10-28

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