Nairobi City County v National Land Commission & 3 others; Dafur Dupoto Welfare Group & 3 others (Interested Parties) (Environment and Land Constitutional Petition 781 of 2015) [2022] KEELC 3002 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed Kwale County's SGR compensation petition because the county sat on its case for over two years without a valid excuse.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition should be dismissed for want of prosecution under order 17 rule 2 of the Civil Procedure Rules
Dismissed. The delay exceeded one year, was prolonged and unexplained, and the compensation process the petition sought to restrain had been finalized
The court applied the Ivita test: whether delay is prolonged and inexcusable and whether justice can nonetheless be done. The delay from January 24, 2018 to the application of March 16, 2020 exceeded a year. The petitioner's two replying affidavits gave conflicting, unverified explanations (transfer of file to Thika, falling out with counsel), and no attempts to set the matter down were demonstrated. Compensation had also been finalized, changing the circumstances at filing.
Whether the explanations offered by the petitioner excused the delay
No. The Thika transfer explanation was contradicted by the record and the falling-out with counsel was unparticularized; a county government could not plausibly be held hostage by its counsel
The record showed Gacheru J last dealt with the matter on November 30, 2016 and Obaga J on February 27, 2017, so the file transfer to Thika could not explain inaction during the relevant period of January 2018 to March 2020. No evidence of attempts to set the matter down was given, and the date of the falling-out with prior counsel was unclear.
Whether the petition was moot given the finalized compensation
The court noted the compensation had been finalized and the situation at filing had changed, undermining the petition's utility
Both parties admitted the compensation process had proceeded and been finalized. This changed factual matrix weighed in favour of dismissal, although the petitioner contended it was yet to be compensated. The court balanced this against the article 50 requirement of a speedy trial.
Legal principles established
#- Dismissal for want of prosecution is a discretionary power to be exercised judiciously on sound legal principles
- The test is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay; the applicant must show prejudice
- A case belongs to the client, not counsel; a party cannot excuse inaction by blaming its advocate
- The right to a fair trial under article 50 envisages a fair and speedy trial, which inordinate delay offends
Court orders
#- 1.The application dated March 16, 2020 is allowed with no order as to costs
- 2.The petition stands dismissed for want of prosecution
- Jurisdiction invoked
- Article 50 of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act and order 17 rule 2(3) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nairobi City County v National Land Commission & 3 others; Dafur Dupoto Welfare Group & 3 others (Interested Parties) (Environment and Land Constitutional Petition 781 of 2015) [2022] KEELC 3002 (KLR)", Case Analysis (2022). Petition (filed August 5, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3002/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.