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ELCDismissed(not stated in judgment; application dated 17/8/2016)· [2018] KEELC 1947 (KLR)
Stephen Gikonyo Gathungwa v Ruaraka Sabuni Development Company & another [2018] KEELC 1947 (KLR)
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#What this practically means
#Executive summary
#The plaintiff applied by notice of motion dated 17/8/2016 to set aside or vary the judgment of 25/2/2015 dismissing his suit, and to have the matter proceed to hearing. He had sued in February 1998 for possession of plots 201 and 202, allegedly bought from the 1st Defendant in June 1986, claiming the 2nd Defendant had trespassed and commenced construction. He explained the failure to prosecute by alleged out-of-court settlement promises by the 1st Defendant's officials, missing files, and unspecified personal challenges. The 2nd Defendant's advocate, Tom Maina Macharia, opposed, deponing that the 2nd Defendant died in March 2012 and he had no instructions. The court noted the defences were filed in 1999, an intended appeal after refusal of injunctive relief was never shown to have been pursued, and the only activity on the file was hearing-date invitations in 2000-2001 and June 2010, with nothing thereafter until the notice to show cause dismissal in February 2015. The plaintiff's alleged negotiations were unsupported by any exhibited evidence, and his personal challenges were undisclosed in nature or duration. Holding the plaintiff indolent for more than ten years, the court was not satisfied the orders should issue and dismissed the application dated 17/8/2016. The judgment, dated and delivered at Nairobi on 30 August 2018, was authored by K. Bor, Judge. An earlier application of 24/11/2016 to enlarge time for substituting the 2nd Defendant had been the subject of a ruling on 21/9/2017.
Key legal issues
#01
Whether to set aside dismissal of suit for want of prosecution
Holding
The court declined to set aside the dismissal, finding the plaintiff indolent for over ten years and his explanations unsubstantiated
Reasoning
The suit was filed in 1998, defences filed in 1999, but the only activity thereafter was occasional letters seeking hearing dates, with no activity from June 2010 until dismissal in February 2015. The plaintiff's claims of out-of-court negotiations and personal challenges were not evidenced. The court held it was not satisfied it should grant the orders sought.
p. 1
Legal principles established
#- Where a suit is dismissed, the court may set aside or vary that order upon just terms, considering the reasons for failure to prosecute
Court orders
#- 1.The application dated 17/8/2016 is dismissed
- Jurisdiction invoked
- Not expressly stated; suit transferred to the Environment and Land Court by consent of the parties on 15.11.2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Gikonyo Gathungwa v Ruaraka Sabuni Development Company & another [2018] KEELC 1947 (KLR)", Case Analysis (2018). (not stated in judgment; application dated 17/8/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1947/eng@2018-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.