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ELCDismissedPetition No. 58 of 2014 (transferred to Environment and Land Court)· [2018] KEELC 1908 (KLR)

Nyamasyo James & 13 others v Mombasa County Government & another [2018] KEELC 1908 (KLR)

Environment and Land Court
19 September 2018
CYC. Yano
2,260 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to dismiss a land case delayed 16 months, saying delay alone isn't enough unless deliberate or seriously unfair.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa (C. Yano, J) ruled on a Notice of Motion by the 2nd, 5th and 6th Interested Parties seeking dismissal of the Petitioners' Petition of 24th September 2014 for want of prosecution. The suit, originally High Court Petition No. 58 of 2014, was transferred to the Environment and Land Court on 12th July 2016 following a preliminary objection, and no step was taken thereafter until the Application of 27th November 2017. The Applicants, who alleged the Petitioners had illegally settled on their parcels of land LR Nos. 13638, 13640 and 13643 Section 1 Mainland North and had obtained an injunctive order, contended the delay was inordinate and inexcusable. The Petitioners opposed, arguing the Application was filed without a Notice of Appointment, that they had been keen to prosecute the matter, and that dismissal would prejudice their right to a fair hearing in a land dispute. The court first rejected the challenge to the Advocate's authority, finding Notices of Appointment on record. Applying Order 17 Rule 2 of the Civil Procedure Rules and the principles in Ivita v Kyumba and Halsbury's Laws of England, the court held the delay of about one year and four months was inordinate but not shown to be deliberate or contumelious, and that the Applicants had suffered no prejudice. Invoking Article 159's dictate of substantive justice and the right to a fair hearing, the court declined to dismiss the land suit and dismissed the Application, with costs of the Application to the Applicants, and directed the parties to take a date for directions within 30 days.

Key legal issues

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01

Whether the Application was fatally defective for want of Notice of Appointment

Holding

The objection was unfounded as Notices of Appointment were on record for the interested parties

Reasoning

The court examined the record and found a Notice of Appointment dated 23rd November 2017 by M/s Khalid Salim & Company Advocates for the interested party, and one filed on 5th August 2015 by M/s Aboubakar, Mwanakitina & Company Advocates for the affected parties. The Notices clearly indicated the parties each firm came on record for, so the challenge to the Advocate's authority failed.

p. 2
02

Whether the suit should be dismissed for want of prosecution

Holding

Application dismissed; delay though inordinate and unexplained was not deliberate or contumelious, and dismissal would occasion injustice in a land dispute

Reasoning

Delay from 12th July 2016 to 27th November 2017 (about one year and four months) was inordinate and unexplained. However, applying Ivita v Kyumba and the Halsbury test, the Applicants did not demonstrate intentional/contumelious default or substantial risk to a fair trial. Guided by Article 159's command of substantive justice and the right to a fair hearing and access to justice, the court sustained the suit in a land dispute, adopting Gikonyo J's lenient exercise of discretion.

p. 4

Legal principles established

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  • The power to dismiss a suit for want of prosecution is discretionary and must be exercised judiciously, guided by whether the delay was intentional, inexcusable, and whether it prejudiced the defendant
  • Where a reason for delay is offered, courts should be lenient and allow the Plaintiff an opportunity to have the case determined on merit

Court orders

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  1. 1.The Application dated 24th November 2014 (filed 27th November 2017) is dismissed
  2. 2.The Petitioners will pay the costs of the Application to the Applicants
  3. 3.Parties to take a date for directions within 30 days on how the Petition will be heard and thereafter the matter to be set down for hearing

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 17 Rule 2(1),(2),(3)
  • Civil Procedure RulesOrder 51 Rule 1
  • Environment and Land Court ActSection 3(1)
  • Constitution of KenyaArticle 159(2)(b)

Cases cited (3)

  • Moses Muriira Maingi & 2 Others vs Maingi Kamuru & Another
    Nyeri CA 151 of 2010
  • Ivita v Kyumba
    (1984) KLR 44
  • Utalii Transport Company Limited & 3 Others v Nic Bank & Another
    (2014) eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 17 Rule 2 of the Civil Procedure Rules

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, "Nyamasyo James & 13 others v Mombasa County Government & another [2018] KEELC 1908 (KLR)", Case Analysis (2018). Petition No. 58 of 2014 (transferred to Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1908/eng@2018-09-19

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