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ELCDismissedNot stated in the judgment (Machakos suit; application dated 6th June 2021)· [2022] KEELC 2332 (KLR)

Waweru v International & 3 others (Environment & Land Case 357 of 2017) [2022] KEELC 2332 (KLR)

Environment and Land Court
14 July 2022
ANA. Nyukuri
1,820 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to dismiss a compensation case because settlement negotiations count as progress, protecting landowners' claims.

What this practically means

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Executive summary

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The 3rd Defendant, by a Notice of Motion dated 6th June 2021, sought dismissal of the Plaintiff's suit for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules, supported by an affidavit of Ian Mudavadi, its legal officer. It contended that the matter was last in court on 24th January 2019 and that the delay of over two years was inordinate, inexcusable and showed lost interest. The Plaintiff, Paul Njoroge Waweru, whose land was compulsorily acquired for a road, opposed the application through counsel Jonathan Omangi and a further affidavit, explaining that parties were engaged in negotiations facilitated through the Anti-Corruption Agency, culminating in an award of Kshs. 4,682,116/= by the 2nd Defendant in January 2021, which remained unimplemented. The applicant relied on Moses Otsiula, Utalii Transport and Agip Kenya to characterise the delay as inordinate. Justice A. Nyukuri framed a single issue: whether the applicant met the threshold for dismissal for want of prosecution. Applying Mwangi S. Kaimenyi, Naftali Opondo Onyango and Ivita v Kyumbu, the court held that any step towards resolution suffices under Order 17 Rule 2; negotiations are such a step, consistent with Article 159(2)(b) on alternative dispute resolution. The applicant also showed no prejudice. The application was dismissed with costs on 14th July 2022, leaving the suit alive, to proceed if the award remained unimplemented.

Key legal issues

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01

Whether the 3rd Defendant met the threshold for dismissal of the suit for want of prosecution under Order 17 Rule 2

Holding

The application failed. The delay was attributable to ongoing negotiations between the parties, which the court treats as a sufficient step, and the applicant showed no prejudice.

Reasoning

The court found the matter last in court on 3rd October 2019, with parties engaged in negotiations that produced an award of Kshs. 4,682,116/= by the 2nd Defendant. Relying on Ivita v Kyumbu and related authorities, the court held that where the suit can proceed without further delay and no substantial prejudice is shown, dismissal is unwarranted. Article 159(2)(b) favouring ADR reinforced the finding that the plaintiff was not indolent.

p. 4

Legal principles established

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  • Any step towards the resolution or conclusion of a matter suffices under Order 17 Rule 2; a step need not be fixing a hearing, mention or case management date.
  • Negotiation towards settlement is a step towards the conclusion of a matter, consistent with Article 159(2)(b) of the Constitution on alternative dispute resolution.

Court orders

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  1. 1.The Notice of Motion dated 6th June 2021 is dismissed
  2. 2.The 3rd Defendant/Applicant shall pay the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
  • Constitution of Kenya, 2010Article 159(2)(b)

Cases cited (6)

  • Moses Otsiula v Children of God Relief Institute
    [2015] eKLR
  • Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another
    [2014] eKLR
  • Agip Kenya Limited v Highlands Tyres Limited
    [2001] eKLR
  • Mwangi S. Kaimenyi v Attorney General & Another
    Civil Misc. No. 720 of 2009
  • Naftali Opondo Onyango v National Bank of Kenya Ltd
    [2005] eKLR
  • Ivita v Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Order 17 Rule 2 of the Civil Procedure Rules, 2010 (inherent powers on dismissal for want of prosecution)

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, "Waweru v International & 3 others (Environment & Land Case 357 of 2017) [2022] KEELC 2332 (KLR)", Case Analysis (2022). Not stated in the judgment (Machakos suit; application dated 6th June 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2332/eng@2022-07-14

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