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ELCDismissedNot stated in the judgment as provided· [2018] KEELC 3691 (KLR)

Fabio Luchetti & another v Maria Zaccagnino [2018] KEELC 3691 (KLR)

Environment and Land Court
3 May 2018
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi dismissed a landowners' suit after five years of unexplained inaction, handing the defendant her counterclaim and full costs.

What this practically means

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Executive summary

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The Defendant, Maria Zaccagnino, filed a Notice of Motion dated 13 February 2018 seeking dismissal of the Plaintiffs' suit for want of prosecution, alternatively a stay, together with leave to prosecute her counterclaim. She alleged inordinate and inexcusable delay and that the Plaintiffs were in wrongful occupation of her property with no desire to prosecute the suit. The 1st Plaintiff, Fabio Luchetti, swore a Replying Affidavit denying loss of interest and urging the court to hear the matter on its merits, but the affidavit was unserved and no Plaintiff attended the hearing. The Defendant's counsel asked the court to disregard the affidavit, relying on Craig v Kansen and Jane Wambui Mwaura v IEBC. The court declined, applying Article 159(2)(d) of the Constitution on procedural technicalities and CFC Stanbic Ltd v John Maina Githaiga, holding that a litigant should not suffer for the advocate's oversight. On the substantive application, the court applied Order 17 Rule 2 of the Civil Procedure Rules and the Ivita v Kyumba test. The record showed the suit was instituted on 7 December 2012, an injunction application was dismissed in June 2013, a Notice of Appeal was struck out in April 2017 after concession, and the Plaintiffs had taken no steps for over five years without explanation. The court inferred loss of interest and prejudice to the Defendant. The suit was dismissed for want of prosecution, the Defendant was granted costs of the application and the suit, and leave was granted to prosecute the counterclaim.

Key legal issues

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01

Effect of failure to serve a Replying Affidavit

Holding

Failure to serve the Replying Affidavit did not render it a nullity; the court took cognizance of it under Article 159(2)(d)

Reasoning

Counsel for the Applicant relied on Craig v Kansen and Jane Wambui Mwaura v IEBC to argue the unserved affidavit was irregular. The court distinguished those authorities, holding that Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities, and the affidavit was filed within reasonable time after service of the application.

p. 2
02

Dismissal for want of prosecution

Holding

The Plaintiffs' suit was dismissed for want of prosecution after more than five years of inaction without explanation

Reasoning

The suit was instituted on 7 December 2012; the injunction application was dismissed in June 2013, a Notice of Appeal was struck out in April 2017 after concession, and the Plaintiffs offered no explanation for the delay. The court inferred loss of interest and found the delay prejudiced the Defendant, who has a counterclaim to prosecute.

p. 3

Legal principles established

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  • The discretion to dismiss a suit for want of prosecution must be exercised judiciously, considering whether the plaintiff has lost interest and whether the delay is inordinate, unreasonable and prejudicial
  • Even prolonged delay does not warrant dismissal if justice can still be done and the plaintiff's excuse satisfies the court
  • A litigant should not suffer for the advocate's oversight, including failure to serve a replying affidavit

Court orders

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  1. 1.The Plaintiffs' suit is dismissed for want of prosecution
  2. 2.The Defendant shall have the costs of the application and the suit
  3. 3.The Defendant is granted leave to prosecute the counterclaim

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 159(2)(b)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 17 Rule 2

Cases cited (4)

  • Craig –vs- Kansen
    (1943) 1 KB 256
  • Jane Wambui Mwaura –vs- Independent Electoral & Boundaries Commission & 2 Others
    (2017) eKLR
  • CFC Stanbic Ltd –vs- John Maina Githaiga & Another
    (2013) eKLR
  • Ivita –vs- Kyumba
    (1984) KLR 441
Jurisdiction invoked
Original civil jurisdiction; provisions invoked include Article 159(2)(b) and (d) of the Constitution and Sections 1A, 1B and 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, "Fabio Luchetti & another v Maria Zaccagnino [2018] KEELC 3691 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3691/eng@2018-05-03

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