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ELCDismissedELC Suit filed 4/9/2015 (Murang'a) - application dated 15/2/2021· [2021] KEELC 2344 (KLR)

Grace Ruguru Mwangi v Francis Mwangi Kanyuru & 4 others [2021] KEELC 2344 (KLR)

Environment and Land Court
29 July 2021
885 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave feuding parties 90 days to prove earlier land cases were over, warning the suit would be automatically dismissed if they failed.

What this practically means

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Executive summary

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The 1st-4th Defendants/Applicants moved the Environment and Land Court at Murang'a by an application dated 15/2/2021 seeking dismissal of the Plaintiff's suit (filed 4/9/2015) for want of prosecution and as bad in law and an abuse of Court process. They argued, relying on Republic v Paul Kihara, Hon AG & 2 others ex parte LSK (2020) eKLR, that the multiplicity of suits amounted to abuse of process, and that the Plaintiff had taken five years to prosecute the suit despite orders of 25/2/2016. The Plaintiff, through counsel Mr Njugi Gachogu, opposed, explaining repeated attempts to obtain updates on the pending suits from Thika, Kigumo and Murang'a Courts, and sought either a direct order to the subordinate Courts or more time. The Court noted that on 4/9/2015 it had held the injunction prayer res judicata in view of SPMCC No 73 of 2015, found the suit to offend the rule of sub judice given seven earlier suits between the parties, and stayed the suit. It found the suit amenable to dismissal under Order 17 rule 2(3) for inaction exceeding 12 months, but held dismissal drastic and, in the interest of justice, granted the parties 90 days to comply with the orders of 25/2/2016 to demonstrate the previous suits no longer bar the suit. The Court also held that Defendants who are plaintiffs in the previous suits bear an equal burden of proof on their status. The application dated 15/2/2021 was dismissed, with each party bearing their own costs, and the suit to stand dismissed in default of compliance.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 rule 2(3)

Holding

The Court found the suit amenable to dismissal but declined to dismiss immediately, instead granting 90 days' compliance with the stay orders of 25/2/2016, failing which the suit stands automatically dismissed

Reasoning

The record showed no prosecution of the suit for over 12 months, making it amenable to dismissal under Order 17 rule 2(3). However, the Court held dismissal to be a drastic measure and, in the interest of justice, exercised its discretion to afford the parties a final opportunity to demonstrate that the previous suits no longer bar the hearing of this suit.

p. 2
02

Whether the burden of showing that previous suits are no longer pending lies only on the Plaintiff

Holding

No - defendants who are plaintiffs in the previous suits must also adduce evidence of their status

Reasoning

Although the Plaintiff alleged that the previous suits were pending, the Court noted that some Defendants are parties to those suits, and where they are the plaintiffs therein they must equally place evidence before the Court that those suits are no longer pending. The responsibility cannot rest on the Plaintiff alone.

p. 2
03

Whether the suit is an abuse of the Court process due to multiplicity of suits

Holding

The suit was stayed in 2016 as offending the rule of sub judice; the abuse-of-process argument was not ultimately determined since the application was dismissed with a compliance window granted

Reasoning

The Court had earlier found the injunction prayer res judicata in view of orders in SPMCC No 73 of 2015 and noted several previous proceedings concerning the suit land, staying the suit. The Applicants relied on Republic v Paul Kihara to argue multiplicity is an abuse of process, but the Court chose to grant a 90-day window rather than dismiss.

p. 1

Legal principles established

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  • A suit in which no action has been taken to prosecute for over 12 months is amenable to dismissal under Order 17 rule 2(3) of the Civil Procedure Rules
  • Where previous suits are cited as a bar to the suit, defendants who are plaintiffs in those suits must equally place evidence before the Court that those suits are no longer pending; the burden cannot fall on the Plaintiff alone

Court orders

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  1. 1.The parties are granted 90 days to comply with the orders of the Court dated 25/2/2016 to demonstrate that the suit is no longer sub judice
  2. 2.In default of compliance, the suit shall stand dismissed
  3. 3.The application dated 15/2/2021 is dismissed
  4. 4.The costs of the application shall be borne by each party

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 rule 2(3)

Cases cited (1)

  • Republic Vs Paul Kihara, Hon AG & 2 others exparte LSK
    (2020) eklr
Jurisdiction invoked
Inherent jurisdiction of the Court and 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, "Grace Ruguru Mwangi v Francis Mwangi Kanyuru & 4 others [2021] KEELC 2344 (KLR)", Case Analysis (2021). ELC Suit filed 4/9/2015 (Murang'a) - application dated 15/2/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2344/eng@2021-07-29

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