Rogam Investments Limited v Canon Aluminium Fabricators Limited & another [2021] KEELC 2170 (KLR)

Environment and Land Court

5 July 2021

KBK. BOR

733 words in judgment

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The bottom line

Kenya's Environment and Land Court dismissed a landowner's suit because the plaintiff sat on it for over a year without serving summons or the amended pleadings.

What this practically means

Executive summary

The 1st Defendant filed an application dated 14/5/2019 seeking dismissal of the Plaintiff's suit — filed on 28/3/2014 seeking a declaration of right of possession of land reference number 20777 measuring approximately one acre — on the ground that it had abated, or alternatively for want of prosecution. The 1st Defendant, through director Parbat Lalji Dhanji, averred that the Plaintiff never collected summons for service and had taken no step to prosecute the case since 6/11/2014, relying on Order 17 Rule 2(1) of the Civil Procedure Rules. The Plaintiff, through director Evans Gitobu, opposed the application, arguing that the 1st Defendant had notice of the suit and participated in the pleadings, that the plaint was amended to add the 2nd Defendant pursuant to directions of 22/7/2014, and invoking Article 159 of the Constitution, Section 95 of the Civil Procedure Act and Order 50 Rule 6 on extension of time. In submissions, the Plaintiff contended that non-service of summons was an inadvertent omission causing no prejudice and that the 1st Defendant's application failed the one-year inaction threshold under Order 17 Rule 2. The court noted that the Plaintiff's advocates came on and off record, that there was no evidence summons were ever extracted or that the amended plaint filed on 16/7/2015 was ever served, and that the 2nd Defendant had never been served. Persuaded that the Plaintiff had lost interest and failed to prosecute the suit for more than a year, K. Bor J dismissed the suit with costs to the 1st Defendant on 5th July 2021.

Key legal issues

Dismissal of suit for want of prosecution / abatement for failure to serve summons

Holding

The suit was dismissed for want of prosecution. There was no evidence that summons to enter appearance were extracted or that the amended plaint of 16/7/2015 was ever served on the 1st Defendant, and the 2nd Defendant was never served. The plaintiff's inaction since 6/11/2014 showed lost interest.

Reasoning

The 1st Defendant applied under Order 17 Rule 2(1) for dismissal for want of prosecution, alternatively abatement under Order 5 Rule 1(6). The Plaintiff relied on participation by the 1st Defendant in the pleadings, Article 159, and the power to extend time under Section 95 of the Civil Procedure Act and Order 50 Rule 6. The court found over a year of inaction, non-service of the amended plaint, and non-extraction of summons, concluding the plaintiff had lost interest; dismissal with costs followed.

p. 2

Legal principles established

A plaintiff who fails to take any step to prosecute a suit for over a year, including failure to extract and serve summons, risks dismissal for want of prosecution under Order 17 Rule 2(1).

Court orders

1.The suit is dismissed
2.Costs of the application/suit awarded to the 1st Defendant

Authorities

Legislation

Civil Procedure RulesOrder 17 Rule 2(1)
Civil Procedure RulesOrder 5 Rule 1 and Order 5 Rule 1(6)
Civil Procedure RulesOrder 50 Rule 6
Civil Procedure ActSection 95
Constitution of KenyaArticle 159

Jurisdiction invoked: Original civil suit under the Civil Procedure Act and Civil Procedure Rules (Order 17 Rule 2(1), Order 5, Section 95)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Rogam Investments Limited v Canon Aluminium Fabricators Limited & another [2021] KEELC 2170 (KLR)", Case Analysis (2021). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2170/eng@2021-07-05

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