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ELCOtherNot stated in the judgment (suit filed 14 October 2016)· [2019] KEELC 658 (KLR)

Thathini Development Co. Ltd v Hanif Iqbaz Khan & 2 others [2019] KEELC 658 (KLR)

Environment and Land Court
12 November 2019
476 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Mombasa court spared a dormant land suit from dismissal, but ordered the owner to pay costs and warned it could still be struck out if progress stalls again.

What this practically means

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Executive summary

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This is a ruling on a notice to show cause issued by the Environment and Land Court at Mombasa under Order 17 Rule 2(1) of the Civil Procedure Rules, directed to the plaintiff in a suit filed on 14 October 2016 concerning land parcel 546 Sec II/MN. The plaintiff, a limited liability company, had pleaded that the 1st defendant illegally invaded the land and was harvesting murram, that the 2nd defendant illegally issued the 1st defendant a murram extraction permit, and that the 3rd defendant issued a fraudulent mining licence; she sought permanent injunctive relief against further mining, general and punitive damages and costs. An injunction application was heard and ruled on 1 November 2016, after which the plaintiff took no step in the matter for three years. On the notice to show cause, plaintiff's counsel explained from the bar that internal company wrangles, the subject of Mombasa HCCC No. 362 of 2014, had been resolved and the board properly constituted, and that the plaintiff wished to prosecute the suit. Counsel for the 2nd defendant countered that no affidavit supported these claims. Munyao Sila J acknowledged that no affidavit had been filed and that one ideally should have been, but gave the plaintiff the benefit of the doubt. The court declined to dismiss the suit, ordered the plaintiff to pay the 2nd defendant's attendance costs of the hearing of the notice, directed the plaintiff to move the case on pain of the notice being revisited, and reserved further directions. This ruling decides the notice only; the underlying suit remains pending.

Key legal issues

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01

Dismissal for want of prosecution under Order 17 Rule 2(1)

Holding

The suit was not dismissed; despite unexplained inactivity since 1 November 2016, the court gave the plaintiff the benefit of the doubt on counsel's oral explanation of resolved internal company wrangles, but attached conditions.

Reasoning

The court accepted the suit had not been moving since the injunction ruling of 1 November 2016 and invoked Order 17 Rule 2(1). Counsel for the plaintiff explained from the bar that internal wrangles, subject of Mombasa HCCC No. 362 of 2014, had been resolved and the board properly constituted. The 2nd defendant objected that no affidavit supported this. Although the court held an affidavit ideally should have been filed, it exercised discretion leniently, imposing attendance costs and warning of dismissal if the plaintiff again failed to move the case.

p. 1
02

Unsworn explanations from the bar

Holding

Explanations advanced from the bar without a supporting affidavit are deficient, but may still attract the benefit of the doubt in the court's discretion on a notice to show cause.

Reasoning

The 2nd defendant's counsel pointed out that no replying affidavit or supporting affidavit had been sworn to substantiate the claim of internal company wrangles. The court agreed an affidavit was the ideal course and noted none had been filed to support the claims of counsel. Nevertheless, in the exercise of its discretion on the notice to show cause, the court chose not to visit the ultimate sanction of dismissal on the plaintiff, instead attaching conditional orders to ensure prosecution of the suit.

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Legal principles established

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  • Where no step is taken in a suit for one year, the court may issue a notice for the plaintiff to show cause why the suit should not be dismissed for want of prosecution under Order 17 Rule 2(1).
  • A court may decline to dismiss a suit for want of prosecution but condition the indulgence on payment of attendance costs and prompt steps by the plaintiff, with liberty to revisit the notice.

Court orders

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  1. 1.The suit was not dismissed for want of prosecution; the plaintiff was given the benefit of the doubt
  2. 2.The plaintiff to pay the 2nd defendant attendance costs of the hearing of the notice to show cause
  3. 3.The plaintiff to take steps to move the case, failing which the court reserved its discretion to revisit the notice to show cause
  4. 4.Further directions to be given after delivery of the ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)
Jurisdiction invoked
Order 17 Rule 2(1) of the Civil Procedure Rules – notice to show cause why suit should not be dismissed 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, "Thathini Development Co. Ltd v Hanif Iqbaz Khan & 2 others [2019] KEELC 658 (KLR)", Case Analysis (2019). Not stated in the judgment (suit filed 14 October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/658/eng@2019-11-12

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