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ELCOtherE & L Case No. 118 of 2015· [2018] KEELC 4800 (KLR)

Reuben Kotwa Meda alais Reuben Kodia Menda v Nora Kole & another [2018] KEELC 4800 (KLR)

Environment and Land Court
23 January 2018
NMN.A. MATHEKA
1,935 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kakamega court refused to immediately dismiss a dormant land suit but warned the plaintiff: fix a hearing date within 30 days or lose the case automatically.

What this practically means

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Executive summary

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The defendants/applicants, widow and sons of the late Kole Inzianachi, applied on 11th July 2017 under Order XVI Rule 5(a) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act for dismissal of E & L Case No. 118 of 2015 for want of prosecution, punishment of the plaintiff for intermeddling with the deceased's land parcel KAKAMEGA/BUSHU/489, and preservation of sugarcane and maize crops on the land. They had obtained a grant in Kakamega Succession Cause No. 633 of 2014, which was stayed pending determination of this suit. They contended that the plaintiff, who filed suit on 22nd April 2015 and obtained interim orders, had done nothing for over two years while constructing a house and cultivating the land. The plaintiff/respondent opposed, arguing the application was brought in bad faith; that there was no Environment and Land Court sitting in Kakamega when the suit was filed; that he had moved to revoke the grant when his interest was ignored; that succession proceedings were only stayed on 25th May 2017; and that the intermeddling prayer belongs in the succession court, the claim being one for adverse possession. Relying on Utalii Transport Co Ltd v NIC Bank and Ivita v Kyumbu, the court held the primary duty to progress a suit lies with the plaintiff and that dismissal turns on whether delay is prolonged and inexcusable. Finding the Kakamega ELC had been sitting since February 2017, the court held the plaintiff had no excuse for continued inaction but gave him one last chance: the suit would stand dismissed unless a hearing date was obtained within 30 days. Costs of the application were to be in the cause.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

Dismissal was not granted immediately but conditionally: the plaintiff was given one final opportunity to fix the suit for hearing within 30 days, failing which the suit stands dismissed

Reasoning

The court found the suit filed on 22nd April 2015 had lain dormant for over two years with no steps by the plaintiff, who offered only the excuse that the ELC in Kakamega was not sitting until February 2017 - an excuse unavailable for the roughly year thereafter. Balancing justice for both sides, the court extended leniency subject to a strict conditional order.

p. 3
02

Whether the delay was excusable

Holding

The absence of an Environment and Land Court in Kakamega at filing did not excuse the plaintiff's inaction once the court began sitting in February 2017

Reasoning

The court noted the ELC in Kakamega started sitting in February 2017, almost a year before the application, and the respondent therefore had no excuse for not moving the case during that period, despite claiming the court did not exist when the suit was filed in 2015.

p. 3

Legal principles established

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  • It is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court
  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay

Court orders

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  1. 1.The application dated 11th July 2017 was not allowed outright; the plaintiff was given one last chance to prosecute the suit
  2. 2.The respondent to obtain a hearing date within 30 days from 23rd January 2018, in default the suit shall stand dismissed for want of prosecution
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder XVI Rule 5(a)
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Utalii Transport Company Ltd & 3 Others v NIC Bank & Another
    (2014) eKLR
  • Ivita v Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Order XVI Rule 5(a) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Reuben Kotwa Meda alais Reuben Kodia Menda v Nora Kole & another [2018] KEELC 4800 (KLR)", Case Analysis (2018). E & L Case No. 118 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4800/eng@2018-01-23

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