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ELCOtherOriginating Summons dated 13th January 2014, filed 28th January 2014· [2018] KEELC 3332 (KLR)

Joseph Moturi Isoe & another v Samuel Kanyi Maingi [2018] KEELC 3332 (KLR)

Environment and Land Court
12 April 2018
AOA. Ombwayo
316 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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A Kenyan land suit survived a dismissal attempt because no directions had been taken — defendants must wait for that step first.

What this practically means

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Executive summary

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The plaintiffs, Joseph Moturi Isoe and Isaac Oyaro, sued the defendant, Samuel Kanyi Maingi, by originating summons dated 13th January 2014 and filed on 28th January 2014, later amended on 3rd December 2014. The defendant filed a replying affidavit on 18th February 2014. Directions had not been taken under Order 37 Rule 16 of the Civil Procedure Rules 2010. The defendant applied by Notice of Motion dated 8th February 2018 seeking dismissal of the suit for want of prosecution with costs, arguing that the plaintiffs had taken no steps since filing, that over three years had elapsed with no action for over two years, that the delay prejudiced him, and that the plaintiffs had lost interest. In reply, the plaintiffs' counsel stated that dates had been unavailable at the registry and that the parties had been engaging in out-of-court settlement. The court, per A. Ombwayo J, perused the record and the rival submissions and held that since the Registrar had not placed the originating summons before the Judge for directions, the matter was not ripe for dismissal for want of prosecution. The application was therefore not granted. The judgment, delivered at Eldoret on 12th April 2018, contains no explicit costs order.

Key legal issues

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01

Whether the suit was ripe for dismissal for want of prosecution

Holding

The application was refused because the procedural step of taking directions had not occurred

Reasoning

Under Order 37 Rule 16 of the Civil Procedure Rules 2010, directions in an originating summons must be taken before the matter proceeds. The court found the Registrar had not placed the originating summons before the Judge for directions, so the matter could not be said to have stalled at a stage where dismissal for want of prosecution would lie. The plaintiffs also asserted settlement negotiations and unavailability of dates, but the decisive factor was procedural ripeness.

p. 2

Legal principles established

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  • A suit cannot be dismissed for want of prosecution before directions have been taken and the matter placed before the judge

Court orders

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  1. 1.The defendant's application dated 8/2/2018 seeking dismissal of the suit for want of prosecution was not granted; the court found the matter not ripe for dismissal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 Rule 16
Jurisdiction invoked
Inherent powers over suits pending before the court; application under Notice of Motion for dismissal for want of prosecution

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, "Joseph Moturi Isoe & another v Samuel Kanyi Maingi [2018] KEELC 3332 (KLR)", Case Analysis (2018). Originating Summons dated 13th January 2014, filed 28th January 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3332/eng@2018-04-12

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