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ELCOtherNot stated in judgment (Kisii ELC; related suit Kisii ELC Case No. 14 of 2018)· [2022] KEELC 2981 (KLR)

Shivling Supermarket Ltd v Nyabuti & another (Environment & Land Case 201 of 2016) [2022] KEELC 2981 (KLR)

Environment and Land Court
1 August 2022
JOJ.M ONYANGO
2,189 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's six-year-old lawsuit was thrown out because he ignored court notices and took too long to move the case forward.

What this practically means

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Executive summary

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This was an Environment and Land Court ruling at Kisii (Onyango J) on two interlocutory applications in a land dispute over parcel Kisii Municipality/Block III/298. The Plaintiff, proprietor of the suit property, had sued in 2016 seeking a declaration of proprietorship, a permanent injunction against trespass, and general damages for trespass. The Defendants, who claimed the land belonged to the estate of the late Zachariah Angwenyi, counterclaimed for a declaration of ownership by the estate and an injunction, and later applied on 19th October 2021 for dismissal of the suit for want of prosecution. The Plaintiff, through its director Rajesh Patel, explained that its title had been revoked by the National Land Commission in 2018 and that it had ceased receiving representation from its former advocates, Ogutu Mboya & Ochwal, and inadvertently failed to appoint new counsel; it also applied for a stay pending Kisii ELC Case No. 14 of 2018. The court framed two issues: whether the suit should be dismissed for want of prosecution, and whether it should be stayed pending the related case. Applying Order 17 Rule 2 of the Civil Procedure Rules and the Ivita v Kyumbu test as restated in Mwangi S. Kimenyi, the court found the Plaintiff indolent: it had ignored a notice to show cause and a mention notice personally served in April 2021, and its explanation was inexcusable. The court held the suit was ripe for suo motu dismissal and refused the stay, noting the related suit would substantially resolve the dispute. The dismissal application was allowed, the stay application dismissed, and the Plaintiff ordered to bear the costs of both applications.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

Yes. The Plaintiff was indolent, ignored a court notice to show cause and mention notices personally served, and its explanation (oversight after former advocates ceased acting) was inexcusable.

Reasoning

The court traced the inactivity from August 2018 when the former advocates ceased acting, through the notice to show cause issued 16th November 2020, to mention dates where only the Plaintiff failed to appear despite personal service of a mention notice. Applying Ivita v Kyumbu and Mwangi S. Kimenyi, the delay was prolonged and inexcusable; the suit was ripe for suo motu dismissal, so the Defendants' application was allowed.

p. 5
02

Whether the suit should be stayed pending Kisii ELC Case No. 14 of 2018

Holding

No. Stay cannot be granted on a matter that was itself set for dismissal for want of prosecution, and the related suit would substantially resolve the dispute.

Reasoning

The Plaintiff personally received the notice yet blamed former advocates for its indolence. Further, the Plaintiff's own application revealed that ELC Case No. 14 of 2018 would substantially resolve the issues in dispute, making a stay illogical and unnecessary.

p. 5

Legal principles established

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  • The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can nonetheless be done despite the delay (Ivita v Kyumbu).
  • Under Order 17 Rule 2 of the Civil Procedure Rules, 2010, a court may dismiss a suit for want of prosecution either suo motu or on application by a party.

Court orders

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  1. 1.The Defendants' application dated 19th October, 2021 seeking dismissal of the suit for want of prosecution is allowed and the suit is dismissed.
  2. 2.The Plaintiff's application for stay dated 15th November, 2021 is dismissed.
  3. 3.The Plaintiff shall bear the costs of both applications.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 17 Rule 2(1)-(4)

Cases cited (2)

  • Ivita -vs- Kyumbu
    (1984) KLR 441
  • Mwangi S. Kimenyi -vs- Attorney General and Another
    Civil Suit Misc. No. 720 of 2009
Jurisdiction invoked
Order 17 Rule 2 of the Civil Procedure Rules, 2010 (dismissal of suit 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, "Shivling Supermarket Ltd v Nyabuti & another (Environment & Land Case 201 of 2016) [2022] KEELC 2981 (KLR)", Case Analysis (2022). Not stated in judgment (Kisii ELC; related suit Kisii ELC Case No. 14 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2981/eng@2022-08-01

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