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ELCDismissedELC suit (formerly Civil Division of the High Court) - application dated 17th March 2016· [2017] KEELC 3057 (KLR)

Benard Kariuki Wataari & 10 others v Registered Trustees of Teleposta Pension Scheme [2017] KEELC 3057 (KLR)

Environment and Land Court
31 March 2017
SOS. Okong'o
1,275 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 court refused to throw out a two-year dormant case because related suits over the same property explained the delay.

What this practically means

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Executive summary

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The defendant brought a Notice of Motion dated 17th March 2016 seeking dismissal of the plaintiffs' suit with costs for want of prosecution, contending that the suit had been dormant for over a year since its transfer from the Civil Division of the High Court on 26th March 2014, that the plaintiffs had lost interest, and that the delay prejudiced the defendant because the plaintiffs continued occupying the suit premises relying on temporary injunctive orders issued in 2008 while not paying rent. The plaintiffs opposed through a replying affidavit sworn by their advocate, Mr. Larry Mulomi, contending the application was brought in bad faith, that numerous other suits and applications concerning the same suit properties - especially ELC No. 157 of 2016 (formerly HCCC No. 477 of 2010) - made it difficult to set the suit down, and that their advocates' failure was an oversight that should not be visited on them. Applying the Ivita vs. Kyumbu (1984) KLR 441 test, the court found the suit dormant for about two years and thus liable for dismissal under Order 17 Rule 2 of the Civil Procedure Rules, shifting the onus to the plaintiffs to show cause. However, on the material before it, the court was satisfied the plaintiffs had a reasonable excuse for the delay given the related suits and subsisting orders touching the suit properties, and that justice could still be done despite the delay. 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 under Order 17 Rule 2 of the Civil Procedure Rules

Holding

The application was dismissed; although the suit was dormant for about two years and was liable for dismissal, the plaintiffs gave a reasonable excuse for the delay

Reasoning

The court applied the Ivita vs. Kyumbu test. It found the suit last in court on 26th March 2014 and dormant for about two years, shifting the onus to the plaintiffs to show cause. On the annextures to the replying affidavit, the court was satisfied that other related suits, particularly ELC No. 157 of 2016 (formerly HCCC No. 477 of 2010), with orders touching on the suit properties, made it difficult to set the suit down. Justice could still be done despite the delay.

p. 2

Legal principles established

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  • The test for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if so, whether justice can be done despite the delay
  • Where a defendant shows prolonged delay and the plaintiff gives no sufficient reason, the delay is presumed inexcusable and the suit may be dismissed

Court orders

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  1. 1.The defendant's Notice of Motion application dated 17th March 2016 is dismissed
  2. 2.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2

Cases cited (1)

  • Ivita vs. Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Inherent discretion under Order 17 Rule 2 of the Civil Procedure Rules (dismissal of suits for want of prosecution)

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, "Benard Kariuki Wataari & 10 others v Registered Trustees of Teleposta Pension Scheme [2017] KEELC 3057 (KLR)", Case Analysis (2017). ELC suit (formerly Civil Division of the High Court) - application dated 17th March 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3057/eng@2017-03-31

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