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ELCDismissed· [2021] KEELC 1269 (KLR)

Sarah Nyambura Wambiro v Laban Ngigi & 2 others; Lilian Wamuyu Wahome (Interested Parties) [2021] KEELC 1269 (KLR)

Environment and Land Court (as context indicates land dispute; judgment does not state court name)
21 October 2021
LKL. KOMINGOI
713 words in judgment
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The bottom line

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A Kenyan landowner lost her chance to revive her dismissed land suit because she waited four years without explaining the delay.

What this practically means

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Executive summary

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This ruling determines a Notice of Motion dated 24th July 2019 by the plaintiff, Sarah Nyambura Karanjah, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and various orders of the Civil Procedure Rules 2010. She sought injunctions restraining the 2nd Defendant from conducting further proceedings on, or allocating, the suit properties including Plot No. V 2124, leave to amend her pleadings to substitute her name, setting aside of a ruling of 13th March 2015 dismissing the suit for want of prosecution and non-attendance, and reinstatement of the suit. The application was opposed by the 3rd Defendant, Joseph Mbugua, by replying affidavit, and the parties canvassed it by written submissions under a consent direction of 11th December 2019. The court identified a single issue: whether the application was merited. Examining the record, the judge noted the suit had been dismissed for want of prosecution on 13th March 2015 and the application was filed about four years later. The plaintiff blamed her former advocates, but the court found the delay inordinate and unexplained. Applying Ivita v Kyumbu (as adopted in John Muruti Thumi v Fidelity Commercial Bank) and Utalii Transport v NIC Bank, the court held the plaintiff indolent in prosecuting her matter and undeserving of the court's discretionary relief. The application was dismissed with costs to the 3rd Defendant. The ruling was delivered in Nairobi on 21st October 2021 by L. Komingoi J.

Key legal issues

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01

Whether the application to set aside the dismissal for want of prosecution and reinstate the suit was merited

Holding

The application was not merited; the delay of about four years was inordinate and unexplained and the plaintiff was indolent.

Reasoning

The suit was dismissed for want of prosecution on 13th March 2015 and the reinstatement application was filed on 24th July 2019, about four years later. The plaintiff blamed her previous advocates, but the court found no plausible explanation for the delay. Applying Ivita v Kyumbu and Utalii Transport v NIC Bank, the court held the plaintiff indolent and undeserving of the discretionary relief.

p. 2

Legal principles established

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  • The test for excusing delay in prosecuting a suit is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay, considering both parties and the court.
  • It is the primary duty of plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court.

Court orders

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  1. 1.The Notice of Motion dated 24th July 2019 is dismissed with costs to the 3rd Defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 12 Rule 7; Order 8 Rule 5; Order 9 Rule 9; Order 10 Rule 11; Order 51 Rule 1

Cases cited (3)

  • John Muruti Thumi & 4 Others vs Fidelity Commercial Bank Ltd & 4 Others
    [2016] eKLR
  • Ivita vs Kyumbu
    [1984] KLR 441
  • Utalii Transport Company Ltd & 3 Others vs NIC Bank & another
    [2014] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7, Order 8 Rule 5, Order 9 Rule 9, Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules 2010

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, "Sarah Nyambura Wambiro v Laban Ngigi & 2 others; Lilian Wamuyu Wahome (Interested Parties) [2021] KEELC 1269 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1269/eng@2021-10-21

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