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ELCDismissedNotice of Motion dated 1st November 2016· [2018] KEELC 421 (KLR)

Nancy Waithera Muturi v Noah Mulwa [2018] KEELC 421 (KLR)

Environment and Land Court
27 November 2018
LKL. KOMINGOI
858 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 dismiss a stalled property suit, ruling that delayed cases survive unless the defendant proves the delay caused real prejudice.

What this practically means

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Executive summary

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The defendant brought a Notice of Motion dated 1st November 2016 under Order 17 Rule 2(3), Order 51 Rule 1(1) of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act, seeking dismissal of the plaintiff's suit for want of prosecution and costs. The application was supported by an affidavit of the defendant's advocate, Eric K Mutua, who argued that the plaintiff had failed or refused to set the matter down for survey or hearing as directed, and that no explanation for the delay had been given. The plaintiff, through her advocate Joseph Wambugu Gaita, opposed the application, explaining that the delay resulted from the defendant's refusal to agree on a single surveyor and the plaintiff's financial constraints in raising the surveyor's fee, which she had since resolved. She relied on Mwangi S. Kimenyi vs Attorney General & another [2014] eKLR. The court noted that the order of 11th June 2013 required the parties jointly to identify a surveyor and undertake a survey of the disputed plots, and that the defendant, who attended all subsequent mentions, could not plead ignorance. The court found it was the defendant who digressed from the order by proposing separate surveyors, and that both parties bore responsibility for compliance. Following the cited authority, the court held that a defendant seeking dismissal for want of prosecution must demonstrate prejudice. As a status quo order was in place, no prejudice was shown, and the plaintiff's explanation was found reasonable. The application was dismissed with costs abiding the outcome of the main suit.

Key legal issues

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Whether the suit should be dismissed for want of prosecution

Holding

The application was dismissed; the delay was excusable and no prejudice was shown

Reasoning

The court reviewed the record and found that the order of 11th June 2013 required the parties jointly to identify a surveyor, and it was the defendant who digressed by proposing each party appoint their own surveyor. Both parties attended subsequent mentions, so the defendant could not plead ignorance. The plaintiff explained the delay as arising from the dispute over the surveyor and financial constraints, and had now raised the surveyor's fee. Following the Mwangi S. Kimenyi authority, the defendant had to show prejudice, which was not demonstrated since a status quo order was in place.

p. 2

Legal principles established

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  • Before dismissing an action for want of prosecution, the defendant must satisfy the court that the delay has prejudiced him or that justice will not be done due to the prolonged delay
  • Even prolonged delay will not lead to dismissal if the plaintiff's excuse satisfies the court; instead the suit will be set down for hearing
  • Where a court order imposes joint obligations on both parties, responsibility for compliance rests on both parties and not on the plaintiff alone

Court orders

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  1. 1.The Notice of Motion dated 1st November 2016 seeking dismissal of the suit for want of prosecution is dismissed
  2. 2.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 17 Rule 2(3)
  • Civil Procedure Rules 2010Order 51 Rule 1(1)
  • Civil Procedure ActSection 3A

Cases cited (1)

  • Mwangi S. Kimenyi vs Attorney General & another
    [2014] eKLR
Jurisdiction invoked
Order 17 Rule 2(3), Order 51 Rule 1(1) of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act

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, "Nancy Waithera Muturi v Noah Mulwa [2018] KEELC 421 (KLR)", Case Analysis (2018). Notice of Motion dated 1st November 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/421/eng@2018-11-27

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