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ELCDismissedNotice of Motion dated 12th July 2016 in HCCC (number not stated in judgment)· [2018] KEELC 1909 (KLR)

Beatrice Mbenyu Masha v Mohamed Mango & another [2018] KEELC 1909 (KLR)

Environment and Land Court (High Court as constituted at Mombasa)
19 September 2018
CYC. Yano
1,182 words in judgment
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The bottom line

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A Mombasa court refused to dismiss a delayed land case, ruling that only deliberate, inexcusable delay justifies throwing out a suit before it is heard.

What this practically means

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Executive summary

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The Defendants/Applicants brought a Notice of Motion dated 12th July 2016 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 17 Rule 2(1) of the Civil Procedure Rules seeking dismissal of the Plaintiff's suit for want of prosecution. They contended the plaintiff had taken no step since the last hearing on 23rd May 2013 and was guilty of inordinate delay. The Plaintiff opposed, explaining that on 27th February 2013 Mukunya J had ordered consolidation of this suit with HCCC No. 356 of 2010 (OS), in which she also claims adverse possession, but the consolidation had not been effected because the file could not be found and some proceedings, including the consolidation order, were missing from the record. The sole issue was whether the suit should be dismissed for want of prosecution. Yano J set out the guiding principles: inordinate delay, whether the delay is intentional and inexcusable, prejudice to the defendant, reasonable explanation, and the interests of justice. The court found the plaintiff had offered no explanation for the delay between February 2013 and July 2016, but noted this is a land dispute where families reside, that dismissal without hearing the merits would be draconian, and that the delay had not been shown to be deliberate, contumelious and inexcusable. Associating itself with Gikonyo J's sentiments in Utalii Transport Company Ltd & 3 others v Nic Bank favouring substantive justice, the court declined to dismiss the suit, dismissed the application with costs in the cause, and directed compliance with Order 11 within 30 days and thereafter setting down for hearing.

Key legal issues

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Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1)

Holding

Application dismissed; delay though inordinate not shown to be deliberate, contumelious or inexcusable, and dismissing a land dispute without hearing the merits would be draconian

Reasoning

The court applied Order 17 Rule 2 and the developed principles guiding the discretion. Although no explanation was offered for the delay between February 2013 and July 2016, the incomplete court record (missing proceedings and the consolidation order) was noted, and the plaintiff's claim of adverse possession over land where families live weighed in favour of sustaining the suit. Substantive justice under the Constitution favoured a lenient exercise of discretion.

p. 2

Legal principles established

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  • Guiding principles for dismissal for want of prosecution include inordinate delay, whether delay is intentional and inexcusable, prejudice to defendant, reasonable explanation, and the interests of justice
  • Courts should favour sustaining rather than dismissing suits where substantive justice so dictates

Court orders

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  1. 1.The application dated 12th July 2016 is dismissed
  2. 2.Costs of the application to be in the cause
  3. 3.Parties directed to comply with Order 11 of the Civil Procedure Rules within 30 days and thereafter the matter to be set down for hearing

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 17 Rule 2(1); Order 11

Cases cited (1)

  • Utalii Transport Company Ltd & 3 others -v- Nic Bank
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 17 Rule 2(1) 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, "Beatrice Mbenyu Masha v Mohamed Mango & another [2018] KEELC 1909 (KLR)", Case Analysis (2018). Notice of Motion dated 12th July 2016 in HCCC (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1909/eng@2018-09-19

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