Mao Otieno Ndege v Barrack Ohulo Opwapo [2017] KEELC 2649 (KLR)
The bottom line
#A Kenyan court refused to dismiss a stalled land case because the defendant, not the plaintiff, was responsible for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit had stagnated for over one year warranting dismissal for want of prosecution
No. Although about one year three months lapsed between the last appearance of 22nd September 2014 and the filing of the motion, the delay arose from the unexecuted consent of 24th March 2014 directing a survey, which the Defendant had not cooperated in implementing.
The court traced the chronology: appearance, defence, witness lists and a consent of 24th March 2014 that surveyors and adjudication officers visit the parcels to fix boundaries and establish encroachment. Mentions in 2014 showed the exercise had not been done. The Plaintiff's counsel deponed, uncontradicted by further affidavit, that non-execution was due to the Defendant's lack of cooperation, so the delay could not be laid on the Plaintiff alone.
Costs of the application
The Defendant was to pay the costs of the dismissed application.
The application was found to be without merit and was dismissed with costs to the Plaintiff, the standard consequence where a motion is unsuccessful and no contrary order is sought.
Legal principles established
#- In an application to dismiss a suit for want of prosecution, the delay cannot be attributed to the plaintiff where the plaintiff was awaiting implementation of a court consent that the defendant had not facilitated and the defendant has not displaced that explanation.
- Where the cause of a delay in prosecuting a suit is known to both parties, dismissal for want of prosecution is not warranted against the plaintiff alone.
Court orders
#- 1.The Defendant's notice of motion dated 25th November 2015 and filed in court on 8th December 2015 is dismissed with costs.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; inherent and procedural powers to dismiss suits for want of prosecution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mao Otieno Ndege v Barrack Ohulo Opwapo [2017] KEELC 2649 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2649/eng@2017-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.