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ELCDismissedCase No 209 of 2018· [2019] KEELC 2924 (KLR)

Joseph Kipletich Singoe v Richard K Koech & another [2019] KEELC 2924 (KLR)

Environment and Land Court
19 June 2019
DOD. O. Ohungo
707 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court refused to dismiss a land case dormant for over a year, finding the delay was caused by a lost court file, not the plaintiff.

What this practically means

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Executive summary

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By a Notice of Motion dated 8th February 2019, the defendants applied under Order 17 Rule 2 of the Civil Procedure Rules for dismissal of the suit with costs for want of prosecution. They deposed that the matter was last in court on 26th September 2017, was given a date of 1st December 2017, and that no step had been taken since. The plaintiff opposed the application through a replying affidavit, explaining that his advocates could not fix a hearing date because the file could not be located at the registry, that dates were unavailable between 2017 and February 2019, and that he had invited the defendants to attend the registry for fixing by letter dated 7th December 2017. At the hearing, counsel for the defendants urged that the matter, filed in 2007 in the High Court before transfer to the Environment and Land Court, had been dormant for over a year. Counsel for the plaintiff submitted that his client was ready to proceed if the court allocated a hearing date. The court found that although over a year had theoretically passed since the matter was last listed, the suit had been fairly active in 2017 - the plaint was amended, pre-trial directions were given, and directions on service upon the newly joined 3rd defendant were issued - and the matter had been partly heard in the High Court before being ordered to commence de novo and transferred. The court, exercising its discretion, gave the plaintiff an opportunity to prosecute his case, dismissed the Notice of Motion and ordered costs in the cause.

Key legal issues

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01

Whether the suit was ripe for dismissal for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules

Holding

The application for dismissal was dismissed; although over one year had passed since the suit was last listed, the delay was not the fault of the parties and the matter had been fairly active before then.

Reasoning

The court accepted that no step had been taken for over a year after 1st December 2017. However, the record showed the matter had been active in 2017 - leave to amend the plaint, pre-trial directions and directions on service upon the newly joined 3rd defendant. The suit was also partly heard in the High Court before being ordered to commence de novo and transferred to the Environment and Land Court. The court therefore exercised its discretion under Order 17 Rule 2(2) to allow the plaintiff an opportunity to prosecute the case rather than dismiss it.

p. 1

Legal principles established

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  • Under Order 17 Rule 2(1), in any suit in which no application has been made or step taken by either party for one year, the court may give notice to the parties to show cause why the suit should not be dismissed, and may dismiss it if cause is not shown.
  • A court may decline to dismiss a suit for want of prosecution where the delay is not attributable to any party and the matter has otherwise been active, in order to allow the plaintiff to prosecute the case.

Court orders

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  1. 1.Notice of Motion dated 8th February 2019 dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
Jurisdiction invoked
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, "Joseph Kipletich Singoe v Richard K Koech & another [2019] KEELC 2924 (KLR)", Case Analysis (2019). Case No 209 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2924/eng@2019-06-19

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