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ELCPartially AllowedNot stated in the excerpt· [2021] KEELC 2788 (KLR)
Charles Wambugu Gitonga v Bakhresa Grain Milling (K) Limited [2021] KEELC 2788 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#A land dispute was thrown out after the plaintiff ignored it for five years, and the defendant won costs.
What this practically means
#Executive summary
#This first-instance decision of the Environment and Land Court at Nairobi, delivered virtually by K. Bor, J on 5 May 2021, determined a Defendant's application dated 4 October 2019 seeking dismissal of the Plaintiff's suit for want of prosecution, or in the alternative, striking out of the suit with costs. The application was supported by an affidavit of Yislam Mohamed Saariy, the Defendant's Operations and Country Manager, who deponed that the matter had last been in court before Justice Mutungi on 2 July 2015 and that no steps had since been taken by the Plaintiff, who bears the primary duty to progress the case. The deponent further contended that the delay occasioned the Defendant unnecessary expense and prejudice, that the suit was motivated by ulterior motives, and that the Defendant is the legitimate and indefeasible leasehold proprietor of L.R. No. 29455 (formerly L.R. No. 21185) on Mombasa Road, a title upheld by the National Land Commission in a determination of 14 November 2016 following memoranda from various claimants. Framing the sole question as whether the suit should be dismissed, the court applied Order 17 Rule 2 of the Civil Procedure Rules, which permits dismissal where no steps are taken for one year. Noting that five years had elapsed without any effort by the Plaintiff to prosecute the case, the court held the delay inordinate and concluded that the interests of justice lay in dismissal. The suit was dismissed for want of prosecution with costs to the Defendant. There was no appearance for the Plaintiff; Mr. Mwamuye appeared for the Defendant.
Key legal issues
#01
Whether the suit should be dismissed for want of prosecution
Holding
The suit was dismissed for want of prosecution due to the Plaintiff's five-year delay
Reasoning
The court noted that five years had elapsed since the Plaintiff last took any step to prosecute the case. Order 17 Rule 2 of the Civil Procedure Rules permits dismissal where no steps are taken for one year. A five-year delay was found inordinate and contrary to the interests of justice, warranting dismissal with costs.
p. 2
Legal principles established
#- Where no steps are taken in a suit for one year, the court may on its own motion or on application dismiss it for want of prosecution
Court orders
#- 1.Suit dismissed for want of prosecution
- 2.Costs of the suit awarded to the Defendant
- Jurisdiction invoked
- Order 17 Rule 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Wambugu Gitonga v Bakhresa Grain Milling (K) Limited [2021] KEELC 2788 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2788/eng@2021-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.