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ELCDismissedNot stated in judgment· [2018] KEELC 4307 (KLR)

Emily Kanyi Mwangi v Hilda Nyambura Mwangi & 2 others [2018] KEELC 4307 (KLR)

Environment and Land Court
23 February 2018
OAO. A. Angote
419 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (O.A. Angote J) on the 1st Defendant's application dated 24th August 2017 seeking dismissal of the suit with costs for want of prosecution. The 1st Defendant deponed that the original plaintiff, Emily Kanyi Mwangi, died on 26th December 2013; that the plaintiff's application for substitution dated 27th February 2015 had been fixed for hearing on 27th January 2016 and 27th July 2016 but was never prosecuted; and that no other step had been taken to move the suit, prejudicing the defendants. The plaintiff opposed, explaining that the defendants had filed an application in Succession Cause No. 82 of 2014 challenging his locus standi to prosecute the suit, which had to be determined first, and that there was no Environment and Land Court judge in Machakos for a long period. The court observed that the file had earlier been transferred to Nairobi by Okongo J precisely because Machakos lacked an ELC judge, and that the file had only been placed before the judge on 20th March 2017. Since less than one year had lapsed before the dismissal application was filed, the court held that the application was prematurely filed. The court dismissed the application dated 24th August 2017 with costs and directed that the file be transferred to the Environment and Land Court, Kajiado for hearing and disposal.

Key legal issues

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Whether the delay in prosecuting the suit warranted dismissal for want of prosecution

Holding

The application was premature and was dismissed with costs; the suit remains alive and was transferred to Kajiado for hearing.

Reasoning

The court noted that the original plaintiff died on 26th December 2013, an application for substitution dated 27th February 2015 remained unprosecuted, but the matter had been moved to Nairobi due to the absence of an ELC judge in Machakos. Since the file returned to the judge on 20th March 2017 and the application was filed on 24th August 2017, less than a year had passed. The pendency of a succession cause challenging the plaintiff's locus standi further explained the inaction. Dismissal was therefore premature.

p. 1

Legal principles established

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  • An application to dismiss a suit for want of prosecution is premature where less than a year has lapsed since the file was last placed before the court, particularly where the delay is attributable to the absence of a judge.

Court orders

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  1. 1.The application dated 24th August 2017 is dismissed with costs
  2. 2.The file is to be transferred to the Environment and Land Court, Kajiado for hearing and disposal
Jurisdiction invoked
Inherent powers of the court over suits pending before it (not expressly stated in the judgment)

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, "Emily Kanyi Mwangi v Hilda Nyambura Mwangi & 2 others [2018] KEELC 4307 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4307/eng@2018-02-23

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