Nona Ole Musanja & 2 Others v Milion Karna & 2 Others [2017] KEELC 654 (KLR)

Environment and Land Court

7 November 2017

COCHRISTINE OCHIENG

984 words in judgment

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The bottom line

A Kajiado land court dismissed a two-year-old lawsuit because the plaintiffs stopped pursuing it, and ordered them to pay the defendants' legal costs.

What this practically means

Executive summary

This was a ruling on the Defendants' Notice of Motion dated 2nd May 2017, brought under Sections 1A, 1B and 3B of the Civil Procedure Act and Order 17 Rule 2(1) and Order 51 Rule 1 of the Civil Procedure Rules, seeking dismissal of the Plaintiffs' suit for want of prosecution. The suit, filed at the Nairobi ELC on 18th June 2015, had attracted ex parte interim orders on 26th June 2015. The Defendants, through the affidavit of their advocate Phanice A. Kwegah, contended that two years had lapsed without the Plaintiffs taking any step to prosecute the suit; that following a 16th July 2015 order allowing out-of-court settlement, the Plaintiffs had done nothing; and that the suit's pendency was prejudicial. The Plaintiffs filed no replying affidavit, and their counsel was absent at the hearing of the application on 18th September 2017 despite due service. The court framed a single issue: whether the suit should be dismissed for want of prosecution. Reviewing the record, Judge Christine Ochieng found that from 22nd September 2015 the matter had never been fixed for hearing nor had Plaintiffs' counsel appeared on several mention dates. Applying the test in Ivita vs. Kyumbu [1984] KLR 441, and noting that dismissal is a draconian measure to be exercised cautiously, the court held the delay prolonged and inexcusable, deduced from the absence of a reply that the Plaintiffs had lost interest, and dismissed the suit for want of prosecution with costs to the Defendants. Judgment was delivered at Kajiado on 7th November 2017.

Key legal issues

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules

Holding

The application was unopposed, the Plaintiffs had taken no steps since September 2015 and had lost interest, so the suit was dismissed for want of prosecution with costs to the Defendants.

Reasoning

The court noted that the suit was filed on 18th June 2015 and on 16th July 2015 the Judge allowed time for out-of-court settlement, with mention fixed for 22nd September 2015. Thereafter the matter was never fixed for hearing and the Plaintiffs' counsel never appeared despite several mention dates, including 20th June 2017 and 18th September 2017 when they were duly served. The Plaintiffs filed no replying affidavit, from which the court deduced they had lost interest. Although dismissal is draconian and must be exercised cautiously, the court is bound to do justice without undue delay, and applying the Ivita vs. Kyumbu test found the delay prolonged and inexcusable.

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Legal principles established

The test for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and, if excusable, whether justice can still be done despite the delay.

Court orders

1.The suit is dismissed for want of prosecution
2.Costs are awarded to the Defendants

Authorities

Legislation

Civil Procedure ActSections 1A, 1B and 3B
Civil Procedure RulesOrder 17 Rule 2(1)(2)(3); Order 51 Rule 1

Cases cited (1)

Ivita vs. Kyumbu
[1984] KLR 441

Jurisdiction invoked: Sections 1A, 1B and 3B of the Civil Procedure Act and Order 17 Rule 2(1) and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Nona Ole Musanja & 2 Others v Milion Karna & 2 Others [2017] KEELC 654 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/654/eng@2017-11-07

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