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ELCOtherELC No. 295 of 2017· [2019] KEELC 1423 (KLR)

Jason Njuru Mwangi & another v Nyambura Mwangi & another [2019] KEELC 1423 (KLR)

Environment & Land Court
9 October 2019
JKJ.G. Kemei
280 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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A Murang'a land suit stalled for years got a final 30-day chance: fix it for hearing or face automatic dismissal.

What this practically means

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Executive summary

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This is a short directions ruling of the Environment and Land Court at Murang'a arising from a Notice to Show Cause issued under Order 17 Rule 2 of the Civil Procedure Rules in a land suit filed on 12/5/15 (captioned ELC No. 295 of 2017). The suit had not been prosecuted apart from one interlocutory application decided on 2/7/18. When the Notice to Show Cause issued on 2/7/19, the Plaintiffs, through a Replying Affidavit sworn by the 1st Plaintiff on 15/7/19, explained that the court file had been untraceable in the registry after delivery of the earlier ruling and was apparently in the typing pool for typing of proceedings. The Court, J.G. Kemei J, noted that there was no letter to the Registry seeking the file, so the explanation remained a mere allegation. Nonetheless, in the interest of justice, rather than dismissing the suit outright, the Court directed the Plaintiffs to fix the matter for hearing within 30 days of the ruling, failing which the suit would stand dismissed. The Defendants were absent; counsel Ndegwa appeared for the Plaintiffs. No costs order was made. This is not a determination of the substantive claim, which remains pending subject to compliance with the directions.

Key legal issues

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01

Whether to dismiss the suit for want of prosecution under Order 17 Rule 2

Holding

The Court declined immediate dismissal but gave a conditional last opportunity: the Plaintiffs must fix the suit for hearing within 30 days, failing which it stands dismissed.

Reasoning

The suit, filed on 12/5/15, had not been prosecuted apart from one application decided on 2/7/18. After a Notice to Show Cause issued on 2/7/19, the Plaintiffs explained the file was untraceable and in the typing pool. The Court found no supporting letter to the Registry, but in the interest of justice granted a conditional directions rather than dismissing outright.

p. 1

Legal principles established

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  • A party asserting that delay was caused by the registry must substantiate it, e.g. with correspondence seeking the file; bare allegation is insufficient.

Court orders

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  1. 1.Plaintiffs directed to fix the matter for hearing within 30 days from the date of the ruling
  2. 2.In default of fixing the matter for hearing within 30 days, the suit shall stand dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
Jurisdiction invoked
Order 17 Rule 2 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, "Jason Njuru Mwangi & another v Nyambura Mwangi & another [2019] KEELC 1423 (KLR)", Case Analysis (2019). ELC No. 295 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1423/eng@2019-10-09

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