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ELCOtherNot stated in the excerpt (Nyahururu ELC suit filed 2017)· [2023] KEELC 373 (KLR)
Wachira (Suing as a legal representative of the Estate of the Daniel Wachira Gibe - Deceased alias Daniel Wachira Gibe) v Wairiri (Sued as the administrator of Geoffrey Waireri Nunua) & another (Environment & Land Case 467 of 2017) [2023] KEELC 373 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#A Kenyan land court refused to dismiss a slow-moving 2017 lawsuit, ruling that explained delay and no proven prejudice outweigh dismissal.
What this practically means
#Executive summary
#This ruling of the Environment and Land Court at Nyahururu determined a notice of motion dated 22.07.2022 by the 1st Defendant, Mary Njoki Wairiri, seeking dismissal of the Plaintiff's suit (filed in 2017) for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act. The Plaintiff opposed through a replying affidavit sworn by his advocate, David K. Gichuki, showing the suit had been set down for hearing on 14.03.2019, 07.11.2019 and 27.02.2020, that Covid-19 stalled hearing in 2020, and that inactivity in 2021 was attributable to the death of the Defendants' then advocate, Ms. Karen Wanderi, whose successor firm only filed a notice of change of advocates together with the dismissal application. Adopting the test in Ivita v Kyumbu [1984] KLR 441 as restated in Utalii Transport Company Ltd v NIC Bank, Angima J held that the delay was not inordinate and inexcusable, that the Plaintiff had offered a reasonable explanation for 2020-2021, and that the Defendants had shown no concrete prejudice - only a bare assertion, with no evidence of unavailable witnesses or lost documents. The motion was disallowed with costs in the cause. The court instead directed the parties to file case summaries, issues and trial bundles within 14 days, ordered that the suit stand dismissed without further order if the Plaintiff defaulted, and set a mention for 14.03.2023 to confirm compliance and fix a hearing date.
Key legal issues
#01
Whether the Plaintiff's suit should be dismissed for want of prosecution
Holding
The application was disallowed; the delay was not inordinate and inexcusable and no prejudice was demonstrated
Reasoning
The court applied the Ivita v Kyumbu test. The record showed the suit was active between 2018 and 2019, having been fixed for hearing on several dates, and that the 2020-2021 inactivity was explained by the Covid-19 pandemic and the death of the Defendants' advocate. The 1st Defendant gave only a bare assertion of prejudice, with no evidence of unavailable witnesses or lost documents.
p. 3
Legal principles established
#- The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay
- The applicant must demonstrate prejudice resulting from the delay before dismissal will be ordered
Court orders
#- 1.The 1st Defendant's notice of motion dated 22.07.2022 be and is hereby disallowed with costs in the cause.
- 2.The Plaintiff shall file and serve his case summary, issues for determination and a complete trial bundle duly bound and paginated within 14 days from the date hereof.
- 3.The Defendants shall similarly file and serve their case summary, issues for determination and trial bundle duly bound and paginated within 14 days upon the lapse of the Plaintiff's period.
- 4.In the event of the Plaintiff defaulting in compliance with order (b) above, the suit shall stand dismissed without further order.
- 5.The suit shall be mentioned on 14.03.2023 to confirm compliance and fix a hearing date.
- Jurisdiction invoked
- Order 17 rule 2 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wachira (Suing as a legal representative of the Estate of the Daniel Wachira Gibe - Deceased alias Daniel Wachira Gibe) v Wairiri (Sued as the administrator of Geoffrey Waireri Nunua) & another (Environment & Land Case 467 of 2017) [2023] KEELC 373 (KLR)", Case Analysis (2023). Not stated in the excerpt (Nyahururu ELC suit filed 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/373/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.