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ELCOtherPetition (filed August 5, 2015)· [2022] KEELC 3002 (KLR)

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)

Environment and Land Court
23 June 2022
2,567 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 2nd respondent applied under order 17 rule 2(3) of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act for dismissal of the petitioner's petition, filed August 5, 2015, seeking compensation arising from phase 1 of the standard gauge railway project on the petitioner's suit land. The applicant argued that the matter was last in court on January 24, 2018 when the petitioner's interlocutory application was dismissed, that over two years of inaction followed, that the compensation process had been finalized rendering the petition moot, and that the continued suit prejudiced the respondent. The petitioner, the County Government of Kwale, responded through two replying affidavits attributing the delay to the file's transfer to Thika and a falling out with its former advocates, and maintained that it had yet to be compensated and that the suit sought to protect public funds. Angote J framed a single issue: whether the petition should be dismissed for want of prosecution. Applying the Ivita v Kyumbu test as adopted by the Court of Appeal in Moses Muriira Maingi and Ecobank Ghana v Triton Petroleum, the court held the delay of over twelve months was prolonged, unexplained and inexcusable - the Thika transfer explanation was contradicted by the record, and a case belongs to the client, not counsel. The court also noted the compensation had been finalized and that article 50 requires a fair and speedy trial. The application was allowed with no order as to costs, and the petition was dismissed.

Key legal issues

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01

Whether the petition should be dismissed for want of prosecution under order 17 rule 2 of the Civil Procedure Rules

Holding

Dismissed. The delay exceeded one year, was prolonged and unexplained, and the compensation process the petition sought to restrain had been finalized

Reasoning

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.

p. 5
02

Whether the explanations offered by the petitioner excused the delay

Holding

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

Reasoning

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.

p. 5
03

Whether the petition was moot given the finalized compensation

Holding

The court noted the compensation had been finalized and the situation at filing had changed, undermining the petition's utility

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The application dated March 16, 2020 is allowed with no order as to costs
  2. 2.The petition stands dismissed for want of prosecution

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure Rulesorder 17 rule 2(1), (3)
  • Constitution of Kenyaarticle 50

Cases cited (11)

  • Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium v MD Popat and Others & Another
    [2016] eKLR
  • Argan Wekesa Okumu v Dima College Limited & 2 Others
    [2015] eKLR
  • Nzoia Sugar Company Limited v West Kenya Sugar Limited
    [2020] eKLR
  • Nzoia Sugar Co Ltd v West Kenya Sugar Limited
    [2017] eKLR
  • Mwangi S Kimenyi v Attorney General & Another
    [2014] eKLR
  • John Harun Mwau v Standard Limited & 2 Others
    [2017] eKLR
  • Ngwambu Ivita v Akton Mutua Kyumbu
    [1984] KLR 441
  • Patriotic Guards Limited v James Kipchirchir Sambu
    [2018] eKLR
  • Moses Muriira Maingi & 2 Others v Maingi Kamuru & Another
    [2013] eKLR
  • Ivita vs Kyumbu
    [1984] KLR 441
  • Ecobank Ghana Limited v Triton Petroleum Co Ltd & 5 Others
    [2018] eKLR
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

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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, "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.