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ELCDismissedNot stated in the judgment· [2023] KEELC 768 (KLR)

Muthoga & 2 others v Mugereki (Environment & Land Case 127 of 2015) [2023] KEELC 768 (KLR)

Environment and Land Court
16 February 2023
JOJ O Olola
1,248 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nyeri refused to dismiss a stalled land suit, finding court delays—not the plaintiffs—explained the slow progress.

What this practically means

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Executive summary

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By a notice of motion dated January 26, 2022, the defendant, Veronicah Wangui Mugereki, sought dismissal of a long-pending land suit for want of prosecution and punishment of the two surviving plaintiffs for failure to obey a directive in a ruling of Lady Justice L N Waithaka dated December 17, 2018, in which she had declined exhumation of the 1st plaintiff's remains from the suit property, LR No Aguthi/Gititu/64, but directed the plaintiffs to show cause within 14 days why they should not be punished for contempt of an earlier burial restraint order. The plaintiffs opposed, contending the contempt issue was res judicata and that the delay was explained by the part-heard status of the matter, the absence of the judge who had partly heard it, the Covid-19 pandemic and the lack of a substantive ELC judge in Nyeri until September 2021. The court (J O Olola, J) found no instance in which the plaintiffs were summoned to a show cause hearing and declined to punish them. Applying the principles in Argan Wekesa Okumu v Dima College Limited, the court also declined to dismiss the suit for want of prosecution, holding the delay neither inordinate nor inexcusable and not attributable to the plaintiffs. The court directed the plaintiffs to fix the suit for hearing within three months and dismissed the motion with costs in the cause.

Key legal issues

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01

Contempt of the show cause directive of December 17, 2018

Holding

The plaintiffs were not in contempt because they were never summoned to a show cause hearing

Reasoning

The December 17, 2018 ruling directed the plaintiffs to show cause within 14 days why they should not be punished for contempt. The court found no record of the plaintiffs being summoned for such a hearing; after the ruling, the matter was only mentioned before Lady Justice Mary Oundo for fixing of the part-heard main suit. Punishment requires a show cause hearing, which never took place.

p. 3
02

Dismissal for want of prosecution under Order 17 rule 2

Holding

The prayer for dismissal was refused as the delay was not attributable to the plaintiffs

Reasoning

Applying the principles in Argan Wekesa Okumu v Dima College Limited, the court found the delay neither inordinate nor inexcusable. The matter was stood over generally on July 15, 2020 as part-heard before Lady Justice Waithaka, who did not return to the station, and there was no substantive ELC judge in Nyeri until September 2021; the Covid-19 pandemic also slowed hearings.

p. 3

Legal principles established

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  • An applicant for dismissal for want of prosecution must show inordinate delay, that the delay is inexcusable, and that the applicant is prejudiced; dismissal is discretionary and a court should strive to sustain a suit where possible
  • An order to show cause requires the affected party to justify or explain at a hearing before the court; no punishment for contempt can follow without such a hearing

Court orders

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  1. 1.The plaintiffs are directed to take steps to fix the suit for hearing within 3 months from the date of the ruling
  2. 2.The motion dated January 26, 2022 is otherwise dismissed with the costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 rules 2(1) and (3)

Cases cited (1)

  • Argan Wekesa Okumu v Dima College Limited & 2 Others
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Order 17 rules 2(1) and (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, "Muthoga & 2 others v Mugereki (Environment & Land Case 127 of 2015) [2023] KEELC 768 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/768/eng@2023-02-16

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