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ELCDismissedELC No. 151 of 2017 (formerly HCCC No. 160 of 2004, High Court at Nakuru)· [2018] KEELC 856 (KLR)

Ole Unua Ole Tonkei & 45 others v Sukei Ole Nkoyiei & 3 others [2018] KEELC 856 (KLR)

Environment and Land Court
30 October 2018
DOD. O. Ohungo
1,032 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru land court spared a 14-year-old land case from dismissal but gave the plaintiffs six months to set it down for hearing or lose it automatically.

What this practically means

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Executive summary

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The defendants filed a Notice of Motion dated 19th March 2018 seeking dismissal of the suit for want of prosecution, deposing through the 1st defendant that although the suit was filed in 2004 (as HCCC No. 160 of 2004 in the High Court at Nakuru, later transferred to the Environment and Land Court as ELC No. 151 of 2017), the plaintiffs had taken no step to prosecute it. The plaintiffs opposed through a replying affidavit sworn by the 1st plaintiff, attributing the delay to their former advocates, Odhiambo & Odhiambo Advocates, whom they said they had fully instructed, and urging that they should not suffer for their advocates' failures. Counsel for the defendants noted that the plaintiffs' new advocates came on record only after the application was filed. The plaintiffs conceded the delay but argued that dismissal would render them homeless and would leave the defendant's counterclaim hanging. The court traced the applicable framework in Order 17 rule 2 of the Civil Procedure Rules, Section 1B(1) of the Civil Procedure Act and Article 159(2) of the Constitution. It found no proof annexed that the former advocates were to blame, but held that dismissal would be unhelpful since the plaintiffs remain in occupation seeking cancellation of title while the defendant seeks eviction. The court dismissed the application with costs in the cause and directed the plaintiffs to fix the suit for hearing within six months, failing which it shall stand dismissed with costs to the defendants.

Key legal issues

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01

Dismissal for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules

Holding

The application was dismissed; the court held that a hearing on the merits would serve the parties better than summary dismissal, while giving the plaintiffs a conditional window to fix the suit for hearing

Reasoning

The court accepted there was inordinate delay since filing in 2004 but found no proof that former advocates were solely to blame, as no correspondence was annexed. Considering Article 159(2) of the Constitution and Section 1B(1) of the Civil Procedure Act, the court balanced expedition against substantive justice, noting that dismissal would leave the plaintiffs in occupation while the defendant continued demanding vacant possession, an outcome that would not resolve the dispute.

p. 2

Legal principles established

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  • A litigant is under a cardinal duty to take all necessary steps to ensure prompt prosecution and conclusion of his case
  • A party alleging that delay was caused by former advocates must furnish proof, such as correspondence, to support that claim

Court orders

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  1. 1.Notice of Motion dated 19th March 2018 is dismissed with costs in the cause
  2. 2.The plaintiffs to fix this suit for hearing within six (6) months from the date of delivery of the ruling; in default, the suit shall stand dismissed with costs to the defendants

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSection 1B(1)
  • Civil Procedure RulesOrder 17 rule 2
Jurisdiction invoked
Article 159(2) of the Constitution; Order 17 rule 2 of the Civil Procedure Rules; Section 1B(1) 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, "Ole Unua Ole Tonkei & 45 others v Sukei Ole Nkoyiei & 3 others [2018] KEELC 856 (KLR)", Case Analysis (2018). ELC No. 151 of 2017 (formerly HCCC No. 160 of 2004, High Court at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/856/eng@2018-10-30

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