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ELCOtherNot stated in judgment· [2019] KEELC 938 (KLR)

Mumwanjesyi Development Ltd v Mbarak Mohamed Ali [2019] KEELC 938 (KLR)

Environment and Land Court
31 October 2019
MSMunyao Sila
716 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court spared a stalled land case from dismissal but ordered the plaintiff to pay costs within 14 days or lose the suit automatically.

What this practically means

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Executive summary

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The defendant/applicant moved the Environment and Land Court at Mombasa by an application dated 31 January 2019 seeking dismissal of the suit for want of prosecution. The suit, filed by plaint on 7 April 2016 by the plaintiff/respondent as registered owner of Sub-Division No. 8011/I/MN and Sub-Division No. 8012/I/MN, sought a permanent injunction against the defendant's alleged illegal entry and construction, and a mandatory injunction to demolish the structures erected. An interim injunction restraining new structures was issued on 13 December 2016, after which the file lay dormant for over two years until the applicant's motion. The applicant anchored the application on Order 42 Rule 35, but the court held that dismissals for want of prosecution fall under Order 17 Rule 2, which it set out verbatim. In opposition, the respondent, through the affidavit of its director Joseph Wainaina Muraya, did not deny the inactivity but explained that a surveyor appointed to map the extent of encroachment had been unable to trace the parcel files in the land registry. The court found the explanation plausible but rebuked the respondent for failing to notify the applicant and the court of the difficulty, so that it could not be presumed she had lost interest. The court held the applicant could not be faulted for filing the application. The court allowed the respondent a final opportunity to ventilate her case, ordered her to pay thrown-away costs of Kshs. 10,000/= within 14 days, failing which the suit would stand dismissed for want of prosecution with costs to the applicant.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2

Holding

Dismissal was not ordered outright; the respondent was granted a conditional opportunity to prosecute the suit, subject to paying the applicant's thrown-away costs within 14 days

Reasoning

The file had been inactive for over two years since the ruling of 13 December 2016. The respondent's explanation for the delay, that a surveyor could not trace parcel files in the land registry, was plausible, but the respondent gave no notice of this difficulty to the applicant or the court. Since the applicant could not be faulted for bringing the application, the respondent was to pay the costs of the application, with dismissal as the consequence of non-payment.

p. 1

Legal principles established

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  • Dismissals for want of prosecution are governed by Order 17 Rule 2, not Order 42 Rule 35
  • A party facing difficulty that will delay prosecution of its suit must notify the other party and the court, lest it be presumed to have lost interest

Court orders

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  1. 1.The respondent was allowed an opportunity to ventilate her case
  2. 2.The respondent to pay costs of the application assessed at Kshs. 10,000/= within 14 days
  3. 3.If costs are not paid within 14 days, the suit will stand dismissed for want of prosecution with costs to the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure RulesOrder 42 Rule 35
Jurisdiction invoked
Civil Procedure Act, 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, "Mumwanjesyi Development Ltd v Mbarak Mohamed Ali [2019] KEELC 938 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/938/eng@2019-10-31

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