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ELCDismissedNakuru HCCC No. 155 of 2003 (consolidated with Nakuru HCCC No. 205 of 2003 and Nakuru HCCC No. 89 of 2011)· [2019] KEELC 3688 (KLR)

Alice Chelangat Towett & 2 others v Rael Chelangat & 3 others [2019] KEELC 3688 (KLR)

Environment and Land Court of Kenya
12 March 2019
MSMunyao Sila
1,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's long-running land suit survived dismissal because the delay was caused by a misplaced court file, not lost interest.

What this practically means

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Executive summary

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The 1st defendant, Jacob Maritim Mosop, applied by notice of motion dated 20 February 2018 under Order 17 Rule 2(1) of the Civil Procedure Rules for dismissal of the plaintiff's suit for want of prosecution, contending that the plaintiff had lost interest in a suit instituted in 2003. The suit, originally filed on 26 September 2003 by Julia Chemutai Towett on her own behalf and under power of attorney for two others, concerned land parcels Nakuru/Sururu/82, 83 and 84 and claims of trespass and fraudulent registration; it was consolidated on 31 May 2013 with two related suits (Nakuru HCCC No. 205 of 2003 and Nakuru HCCC No. 89 of 2011). The court had directed amendment of the plaint to embrace all the suits, which was done, with the applicant filing an amended defence and counterclaim. The last court appearance was 19 July 2016 when no counsel attended. The plaintiff opposed the application, explaining that the court file had been misplaced, as evidenced by a letter of 25 May 2017 to the Deputy Registrar copied to the applicant's counsel. The court held that although more than a year had lapsed, the record did not reflect negatively on the plaintiff, who had demonstrated diligence as a litigant, and observed that the applicant himself, having a counterclaim, could have listed the case for hearing during the period he complained of. The application was dismissed with costs to the plaintiff and the 2nd and 3rd defendants.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1)

Holding

The application was dismissed; although more than a year had lapsed without a step, the inactivity was not due to the plaintiff's lack of interest but to the misplacement of the court file, and the applicant himself had not prosecuted his counterclaim

Reasoning

The court found that more than one year had elapsed since the case was last in court on 19 July 2016. However, the plaintiff had complied with directions to amend pleadings, had written to the Deputy Registrar on 25 May 2017 about the missing file (copied to the applicant's counsel), and counsel had attended court regularly. On 19 July 2016 no counsel, including the applicant's, attended. The applicant, who filed an amended defence and counterclaim, had not set down his own counterclaim for hearing during the period he complained about. The application was therefore dismissed with costs to the plaintiff and the 2nd and 3rd defendants.

p. 2

Legal principles established

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  • A party may apply for dismissal of a suit for want of prosecution where no step has been taken for one year, but the court will not dismiss where the inactivity is not attributable to the applicant's loss of interest
  • A defendant with a counterclaim who complains of the plaintiff's inactivity ought himself to have set down his counterclaim for hearing

Court orders

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  1. 1.The 1st defendant's application dated 20 February 2018 seeking dismissal of the suit for want of prosecution is dismissed
  2. 2.The plaintiff and the 2nd and 3rd defendants shall have the costs of the application as against the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)
Jurisdiction invoked
Order 17 Rule 2(1) 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, "Alice Chelangat Towett & 2 others v Rael Chelangat & 3 others [2019] KEELC 3688 (KLR)", Case Analysis (2019). Nakuru HCCC No. 155 of 2003 (consolidated with Nakuru HCCC No. 205 of 2003 and Nakuru HCCC No. 89 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3688/eng@2019-03-12

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