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ELCDismissedNot stated in the judgment (Application dated 1st September, 2016)· [2017] KEELC 1265 (KLR)

Gregory Sembei Wambua & another v George Muema Syengo & 3 others [2017] KEELC 1265 (KLR)

Environment and Land Court
2 November 2017
OAO.A. Angote
397 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land case survived a dismissal bid because court delays beyond a litigant's control cannot be held against them.

What this practically means

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Executive summary

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The 3rd Defendant moved the Environment and Land Court at Machakos by an application dated 1st September 2016 seeking dismissal of the suit against it for want of prosecution, on the ground that although the suit was filed on 8th October 2014, no effort had been made to set it down for hearing. The Plaintiffs' advocate replied that shortly after filing, the operations of the Environment and Land Court at Machakos were suspended, and although the suit was scheduled for mention on 27th May 2015, nothing happened on that day. Both counsel made brief oral submissions, and the court also considered Mwangi S. Kimanyi vs. The Attorney General & Another (2014) eKLR. O.A. Angote J observed that the land matters at Machakos had previously been handled by the High Court, but on 8th May 2015 the Court of Appeal in Karisa Chengo & others vs. R held that the High Court had no jurisdiction to hear and determine land matters. Consequently, land matters that had been filed could not be fixed for hearing until the judge was posted to the station in January 2017. Since the 3rd Defendant had filed its defence on 14th January 2015, only a few months before the Karisa Chengo decision, and the Plaintiffs could not be blamed for the delay occasioned by the lack of a judge, the court found the application unmeritorious. The application dated 1st September 2016 was dismissed with costs on 2nd November 2017.

Key legal issues

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01

Whether the suit against the 3rd Defendant ought to be dismissed for want of prosecution.

Holding

The application was unmeritorious because the delay was not attributable to the Plaintiffs; the court lacked a judge with jurisdiction over land matters after Karisa Chengo until January 2017.

Reasoning

The suit was filed on 8th October 2014 and defences were filed by January 2015. On 8th May 2015 the Court of Appeal in Karisa Chengo held that the High Court had no jurisdiction over land matters, and land matters at Machakos could not be set down for hearing until a judge was posted in January 2017. The 3rd Defendant had itself filed its defence only a few months before that decision. Inactivity was therefore institutional, not the Plaintiffs' fault.

p. 2

Legal principles established

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  • A party should not be penalised for want of prosecution where the delay was occasioned by the absence of a judge with jurisdiction at the station, following the Court of Appeal's decision in Karisa Chengo & others vs. R.

Court orders

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  1. 1.The Application dated 1st September, 2016 is dismissed with costs.

Authorities

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Cases cited (2)

  • Mwangi S. Kimanyi vs. The Attorney General & Another
    (2014) eKLR
  • Karisa Chengo & others vs. R
    (2015) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land matters (suit filed 8th October, 2014; court at Machakos)

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, "Gregory Sembei Wambua & another v George Muema Syengo & 3 others [2017] KEELC 1265 (KLR)", Case Analysis (2017). Not stated in the judgment (Application dated 1st September, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1265/eng@2017-11-02

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