Chibungu & 2 others v Mpelelezi (Intended Administrator of the Estate of Mpelelezi Ndewa Kalama Deceased) & 2 others (Environment & Land Case 31 of 2005) [2023] KEELC 22 (KLR)
The bottom line
#A Kenyan land dispute was dismissed after plaintiffs sat on it for years, proving courts will punish inaction and punish it with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be dismissed for want of prosecution
Suit dismissed; plaintiffs took no steps for over one year (indeed about three years from last plaintiff attendance) without reasonable explanation, justifying dismissal under Order 17 Rule 2(1).
The last hearing at which evidence was taken was July 10, 2018; plaintiffs last attended court through counsel on December 18, 2018. Between December 9, 2019 and issuance of the notice to show cause on December 6, 2021, about two years elapsed with no step by any party. Plaintiffs blamed defendants for delay in substituting the 1st defendant, but the court held all parties bear equal responsibility to prosecute claims. No reasonable explanation was offered, warranting dismissal under Order 17 Rule 2(1) of the Civil Procedure Rules.
Whether the suit against the 1st defendant has abated
Claim against the 1st defendant lapsed on or about December 31, 2019, one year after her death on December 31, 2018, since no substitution application or extension of time was filed.
The 1st defendant died on December 31, 2018. No application for her substitution within one year nor leave to extend time was made. Consequently the plaintiffs' claim against her lapsed after one year, on or about December 31, 2019, leaving only claims against the 2nd and 3rd defendants by the time the notice to show cause was issued in December 2021.
Who pays the costs
Plaintiffs to pay defendants' costs under section 27 of the Civil Procedure Act.
The defendants had defended the suit by filing replies and participating in the hearing through counsel, thereby incurring expenses, and are thus entitled to costs under section 27 of the Civil Procedure Act (Chapter 21, Laws of Kenya).
Legal principles established
#- A suit against a deceased defendant lapses one year after death where no substitution application or extension of time is sought.
- All parties have equal rights and duties to take steps towards prosecuting their claims; a plaintiff cannot blame defendants for failure to prosecute.
Court orders
#- 1.The plaintiffs' claim against the 1st defendant be and is hereby marked to have lapsed after one year from her death on the December 31, 2018, that is, on or about December 31, 2019.
- 2.The plaintiffs' suit/claim against the 2nd and 3rd defendants be and is hereby dismissed for want of prosecution.
- 3.The plaintiffs to pay the defendants costs.
- Jurisdiction invoked
- Inherent jurisdiction under Order 17 Rule 2(1) of the Civil Procedure Rules to dismiss a suit for want of prosecution; civil procedure Act chapter 21 Laws of Kenya (section 27 on costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chibungu & 2 others v Mpelelezi (Intended Administrator of the Estate of Mpelelezi Ndewa Kalama Deceased) & 2 others (Environment & Land Case 31 of 2005) [2023] KEELC 22 (KLR)", Case Analysis (2023). null (not stated in the judgment; suit commenced by originating summons dated February 10, 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22/eng@2023-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.