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ELCPartially AllowedNot stated in judgment (transferred from Machakos High Court to Nairobi ELC and then Kajiado ELC)· [2020] KEELC 504 (KLR)

Masango Ole Moncho v Registrar of Lands & 4 others [2020] KEELC 504 (KLR)

Environment and Land Court
26 November 2020
COCHRISTINE OCHIENG
1,234 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a six-year-old land case because the plaintiff never set it down for hearing — delays can cost you your entire claim.

What this practically means

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Executive summary

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This was a ruling on the 2nd to 5th Defendants' application dated 5th October 2015 seeking dismissal of the Plaintiff's suit for want of prosecution under Order 17 Rule 2(3) of the Civil Procedure Rules. The Defendants, through their advocate Kelvin Mogeni, argued that the Plaintiff had never set the suit down for hearing since filing, that pleadings were assumed closed in October 2014, and that the delay was inordinate and prejudicial. The Plaintiff, through his advocate Mercy Moragwa Mogusu, opposed the application, explaining his prolonged illness and hospitalisation, the absence of a judge to hear land cases in Machakos since July 2015, and successive transfers of the matter from Machakos High Court to Nairobi ELC and then to Kajiado ELC on 27th September 2018. Only the Applicants filed written submissions. The court framed a single issue: whether the suit should be dismissed for want of prosecution. Applying the Ivita v Kyumbu test - whether the delay is prolonged and inexcusable and whether justice can nonetheless be done - and endorsing Lord Denning MR's rationale in Allen v Sir Alfred McAlpine as favourably cited in Venture Capital & Credit Ltd v Consolidated Bank of Kenya Ltd, the court found the Plaintiff had taken no step in over six years. The delay was held to be inordinate, inexcusable and prejudicial. The court allowed the application and dismissed the Plaintiff's suit with costs to the 2nd to 5th Defendants.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(3) of the Civil Procedure Rules

Holding

The application was allowed and the suit dismissed because the Plaintiff had never set the suit down for hearing in over six years

Reasoning

The court reviewed the record and found the suit, filed on 1st July 2014, had never been fixed for hearing despite transfers between Machakos, Nairobi and Kajiado. Applying the Ivita v Kyumbu test and the principle in Allen v Sir Alfred McAlpine, the court found the delay prolonged, inexcusable and prejudicial. The Plaintiff's explanation of ill health and the absence of a judge in Machakos did not excuse the failure to take any step for years.

p. 2

Legal principles established

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  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay
  • Dismissal for want of prosecution is a sanction within the inherent jurisdiction of the court and is expressly permitted by the rules of court

Court orders

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  1. 1.The 2nd to 5th Defendants' application dated the 5th October, 2015 is allowed
  2. 2.The Plaintiff's suit is dismissed
  3. 3.Costs to the 2nd to 5th Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1), (2), (3), (4)

Cases cited (9)

  • Venture Capital and Credit Ltd V Consolidated Bank of Kenya Ltd
    (2006) eKLR
  • Caltex Oil (Kenya) Ltd V Evanson N. Wanjihia
    null
  • Allan V Sir Alfred Mc Alphine and Sons Limited
    (1968) I ALL ER 543
  • Dagane V Cheron
    (2015) eKLR
  • Ivita V Mutua
    CIV, Case No. 340 of 1971
  • Pravichandra Jamnadas Kakad V Kenya Bus Services Limited and Another
    (2014) eKLR
  • Skyview Properties Limited & Another V Kennedy Amos Njoroge & 3 Others
    (2017) eKLR
  • Ivita V Kyumbu
    (1984) KLR 441
  • ALLEN –VS- SIR ALFRED MC ALPINE
    [1968] 1 ALL E.R. 543
Jurisdiction invoked
Order 17 Rule 2(3) 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, "Masango Ole Moncho v Registrar of Lands & 4 others [2020] KEELC 504 (KLR)", Case Analysis (2020). Not stated in judgment (transferred from Machakos High Court to Nairobi ELC and then Kajiado ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/504/eng@2020-11-26

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