Daniel Gichuru Njugi t/a Gichuru & Gichuru Advocates v Paul Nyaga Kanyoi, Henry Angweny Araka, Cyrus Njogu Mburu ,Margaret Waithera Njugi & John Nyoro Gathayo (Environment & Land Case 226 of 2011) [2017] KEELC 3363 (KLR)
The bottom line
#The Environment and Land Court in Machakos refused to reinstate a land suit dismissed for sitting idle for years, confirming it stands dismissed.
What this practically means
#Executive summary
#Key legal issues
#Legality of dismissal for want of prosecution
The dismissal of 15th July, 2015 was proper; the Notice to Show Cause was served by post on the Plaintiff's former advocates who never denied receipt by affidavit
The court noted that notices to show cause are commonly served by post. The Plaintiff's former firm's address appeared on the notice and no affidavit denying service was sworn. The current advocates were not on record at the dismissal, so the Plaintiff could not depone to non-service. The matter had lain dormant since December 2012 despite a consent to mention within 45 days.
Jurisdiction over land matters
Land matters belong to the Environment and Land Court, but before Karisa Chengo the High Court also handled such matters, so the earlier proceedings were not a nullity
The court accepted that the suit, being in respect of land, could only be heard by the Environment and Land Court. However, it acknowledged that until the Court of Appeal decision in Karisa Chengo & Others v. R (2015) eKLR, High Court judges dealt with land matters, undercutting counsel's submission that the earlier High Court proceedings were invalid.
Legal principles established
#- Under Order 17 of the Civil Procedure Rules, the Court has jurisdiction to dismiss any matter not set down for hearing for more than one year
- Parties had notice that unless they showed cause the matter would be dismissed; the wrong provision cited on the Notice does not invalidate the dismissal
Court orders
#- 1.Dismissal of the Application dated 20th May, 2016
- 2.Dismissal of the Application dated 26th October, 2016
- 3.Costs of the applications to the defendants
- 4.Confirmation that the suit stands dismissed
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land matters (Order 17 and Order 42 Rule 35(2) Civil Procedure Rules considered)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Gichuru Njugi t/a Gichuru & Gichuru Advocates v Paul Nyaga Kanyoi, Henry Angweny Araka, Cyrus Njogu Mburu ,Margaret Waithera Njugi & John Nyoro Gathayo (Environment & Land Case 226 of 2011) [2017] KEELC 3363 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3363/eng@2017-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.