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ELCDismissedNot stated in judgment· [2018] KEELC 2765 (KLR)

Hellen Wangari Samuel v Simon Kamau Munga & another [2018] KEELC 2765 (KLR)

Environment and Land Court
21 June 2018
MGMary M. GitumbiBEBernard Eboso
1,210 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to dismiss a land case delayed by one year, ruling the delay was not long enough to make a fair trial impossible.

What this practically means

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Executive summary

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The 1st Defendant, through his advocate Kimandu Gichohi, moved the court by Notice of Motion dated 28th November 2014 seeking dismissal of the plaintiff Hellen Wangari Samuel's suit for want of prosecution with costs. The applicant contended that after a ruling of 1st November 2013 on interlocutory applications, the plaintiff had taken no step for over a year, causing detriment and anguish. The plaintiff opposed, asserting that she had served an amended plaint and filed further witness statements, and that her inactivity was due to her involvement in Makadara Criminal Case No. 3739 of 2012, Republic v Hellen Wangare Samuel, concerning the suit property. The applicant's further affidavit countered that summons had never been extracted and that the criminal case was no excuse. The court framed one issue: whether to dismiss the suit for want of prosecution, applying Order 17 Rule 2(1) of the Civil Procedure Rules, 2010, and the tests in Ivita v Kyumbu and E.T. Monks & Co Ltd v Evans. It found the delay of one year neither prolonged nor such as to make a fair trial impossible or prejudice the defendants, and noted the plaintiff's steps in the suit during that period. The application was dismissed with costs in the cause.

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; one-year delay not inexcusable and plaintiff took steps during the period

Reasoning

The court applied Order 17 Rule 2(1) and the Ivita test. It found the delay was only one year, the period itself triggering the provision, but not so lengthy as to make a fair trial impossible or prejudice the defendants. The plaintiff had served the amended plaint and filed further witness statements during the intervening period, and attributed her inactivity to a related criminal case. Discretion therefore exercised against dismissal.

p. 2

Legal principles established

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  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can nonetheless be done; the defendant must show prejudice

Court orders

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  1. 1.The Notice of Motion dated 28th November 2014 seeking dismissal of the suit for want of prosecution is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 17 Rule 2(1)

Cases cited (2)

  • Ivita vs. Kyumbu
    [1984] KLR 441
  • E. T. Monks and Co Ltd v Evans
    (1985) KLR 584
Jurisdiction invoked
Order 17 Rule 2(1) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hellen Wangari Samuel v Simon Kamau Munga & another [2018] KEELC 2765 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2765/eng@2018-06-21

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