Kiberenge Lumbas Ngisirei v Midland Construction Company [2021] KEELC 1989 (KLR)
The bottom line
#The Environment and Land Court dismissed a land suit because the plaintiff ignored it for nearly two and a half years.
What this practically means
#Executive summary
#Key legal issues
#Whether delay of over one year without a step justified dismissal for want of prosecution
Yes - the delay of almost two and a half years was inordinate and unexplained, showing the plaintiff had lost interest; the suit was dismissed.
Order 17 Rule 2 allows a party to apply for dismissal where no step has been taken for one year. The plaintiff offered only unproven explanations of old age and his son's absence, which covered only 2019 and not 2017-2018. Under section 106 of the Evidence Act he bore the burden of proving those facts. The delay being inordinate, the court concluded the plaintiff had lost interest, and the defendant, having signalled its determination to defend, was entitled to costs under section 27 of the Civil Procedure Act.
Legal principles established
#- Whether to dismiss a suit for want of prosecution under Order 17 is a matter within the court's discretion, to be exercised judiciously in the interest of justice.
- The applicant must show the delay is inordinate, inexcusable and likely to cause prejudice to the defendant.
Court orders
#- 1.The suit commenced through the plaint dated 1st November, 2016 and filed on the 2nd November, 2016 and the notice of motion of even date are dismissed with costs for want of prosecution
- 2.The plaintiff to pay the costs of the application dated 22nd January, 2019
- Jurisdiction invoked
- Sections 1A, 3A of the Civil Procedure Act and Order 17 Rule 2(3) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiberenge Lumbas Ngisirei v Midland Construction Company [2021] KEELC 1989 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1989/eng@2021-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.