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ELCDismissedNot stated in judgment· [2019] KEELC 799 (KLR)

Peter Mureithi Nyamu v Councillor Ezekiel Bene & another [2019] KEELC 799 (KLR)

Environment and Land Court
13 November 2019
COCHRISTINE OCHIENG
1,136 words in judgment
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The bottom line

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The Kajiado Environment and Land Court refused to reinstate a land suit dismissed for want of prosecution, finding nine years of inexcusable delay.

What this practically means

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Executive summary

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This was a ruling on the 1st Defendant's Notice of Motion dated 25th March, 2019 seeking to set aside orders of 9th October, 2018 dismissing the suit for want of prosecution, to reinstate the suit, for leave to file a Defence and Counterclaim out of time, and for injunctive orders and a restriction against land reference number Residential plot No. 51 Ngong (Now Ngong Township/Block 2/659). The 1st Defendant, Ezekiel Bene, claimed ownership of the land, that his former advocates never informed him of the notice to show cause, and that the Plaintiff was interfering with the land. The Plaintiff opposed, asserting the application was frivolous, an abuse of process, that the Applicant was guilty of laches, that the Plaintiff had no interest in pursuing the suit, and that the Applicant should file his own suit. The court framed one issue: whether the suit should be reinstated. Relying on Order 12 rule 7 and associating itself with Justice Ochieng's decision in W. Muchanga & E. Olunga t/a Womi Associates v Attorney General [2017] eKLR, the court held that the nine-year delay in filing a Defence was inexcusable, blame on former advocates was unexplained, and that a court cannot compel an unwilling plaintiff to litigate. The injunction and restriction reliefs were also refused as no suit was subsisting. The application was dismissed. No costs order appears in the judgment.

Key legal issues

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01

Whether the suit dismissed for want of prosecution should be reinstated

Holding

The application was dismissed; the delay was inordinate and unexplained and the plaintiff had no interest in reviving the suit

Reasoning

Order 12 rule 7 permits setting aside a dismissal on just terms, but the court found the 1st Defendant's nine-year failure to file a Defence inexcusable. Blaming former advocates was insufficient as no evidence of follow-up with counsel was shown. The Plaintiff expressly disclaimed interest in the suit, and the court held it could not compel an unwilling plaintiff to litigate. Interlocutory reliefs sought were incompetent absent a subsisting suit.

p. 2

Legal principles established

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  • A court cannot compel a plaintiff to prosecute a suit in which he has no interest
  • A dismissed suit cannot support interlocutory relief such as injunction or restriction

Court orders

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  1. 1.Application dated 25th March, 2019 dismissed

Authorities

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Legislation

  • Civil Procedure Actsections 1, 1A, 3, 3A
  • Civil Procedure RulesOrder 50
  • Civil Procedure RulesOrder 12 rule 7

Cases cited (3)

  • Mbogo & Another V Shah
    EALR 1968
  • Professor Mwangi S. Kimenyi V the Hon. Attorney General & Anor
    Misc. No. 720 of 2009
  • W. Muchanga & E. Olunga t/a Womi Associates v Attorney General
    [2017] eKLR
Jurisdiction invoked
Sections 1, 1A, 3, 3A of the Civil Procedure Act and Order 50 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, "Peter Mureithi Nyamu v Councillor Ezekiel Bene & another [2019] KEELC 799 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/799/eng@2019-11-13

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