Mirko Blaettermann (Suing through his power of Attorney Shabir Hatim Ali) & another v David Mwangi Muiruri & 2 others [2019] KEELC 1242 (KLR)
The bottom line
#A Malindi land court refused to throw out a seven-year-old case, instead giving the plaintiff 60 days to finish his evidence or lose the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules
The court declined to dismiss the suit; the plaintiffs had already partially testified and the delay was attributable in part to the defendants' own numerous applications
The court applied the Ivita v Kyumbu test, which requires a defendant to show that justice will not be done due to the plaintiff's prolonged delay. The record showed the plaintiffs had commenced giving evidence on 7th May 2015, and Angote J had earlier found that the defendants' numerous applications were themselves contributing to the delay. Dismissal was therefore not warranted; instead a timeline was set for conclusion of the plaintiffs' case.
Whether the defendants' counterclaim and ancillary prayers (discharge of injunction, investigation order) could be granted on a notice of motion before trial
All refused; the counterclaim awaits the defendants' evidence at trial and the investigation request was moot given a prior criminal investigation
The court noted the application was not drafted with precision but discerned three major orders sought. It found the matter had already been criminally investigated with an unclear outcome, declined to grant the orders, and directed that the defendants would be called upon to offer evidence in support of their defence and counterclaim once the plaintiffs' case closed, preserving the counterclaim for trial.
Legal principles established
#- Before a court will dismiss a suit for want of prosecution, the defendant must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff
- A party whose own numerous interlocutory applications delay the trial cannot rely on that delay to seek dismissal of the suit for want of prosecution
Court orders
#- 1.The application dated 20th August 2018 is declined/dismissed
- 2.The Plaintiff shall have 60 days within which to conclude his case, failing which the Plaintiff's case shall stand closed and the Defendants shall be called upon to offer evidence in support of their Defence and Counterclaim
- 3.No order as to costs
- Jurisdiction invoked
- Original civil jurisdiction; application under Order 17 Rule 2 and Order 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mirko Blaettermann (Suing through his power of Attorney Shabir Hatim Ali) & another v David Mwangi Muiruri & 2 others [2019] KEELC 1242 (KLR)", Case Analysis (2019). Not stated in the judgment ( suit filed in 2012; application dated 20th August 2018 ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1242/eng@2019-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.