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ELCDismissedEnvironment & Land Case 117 of 2019· [2023] KEELC 18731 (KLR)

Fiona Mutheu Mbeta v Josephat Musyoka Ndambuki

Environment and Land Court
5 July 2023
ANA. Nyukuri
1,819 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to dismiss a delayed lawsuit because the defendant couldn't prove the delay actually harmed his case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (A. Nyukuri, J) determined the Defendant's application dated December 9, 2021 seeking dismissal of the Plaintiff's suit for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules. The suit, an Originating Summons filed on October 24, 2019, had seen no step for approximately one year and eleven months. The Defendant, through counsel Muema Kitulu, argued the delay was inordinate and risked unavailability of defence witnesses or loss of documents, relying on Mwangi S. Kimenyi and Nilesh Premchand Milji Shah. The Plaintiff, through Kennedy Ochieng, attributed the delay to the Covid-19 pandemic, the Defendant's own late filing of a replying affidavit (six months after service), and the consequent need to shift from affidavit-based hearing to viva voce evidence, relying on Admult Collos and George Gatere Kibata. The court framed a sole issue: whether the threshold for dismissal was met. Applying Ivita v Kyumbu and the Kimenyi factors, it found the Defendant contributed to the delay, that Covid-19 disrupted court operations, and that the alleged prejudice was speculative since no specific witness or document was identified as unavailable or lost. Balancing the Plaintiff's right to be heard against the right to an expeditious trial under article 159, the court dismissed the application but, noting the delay lay with the Plaintiff, ordered her to bear the costs of the application.

Key legal issues

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01

Whether the threshold for dismissal for want of prosecution under Order 17 Rule 2 was met

Holding

Application dismissed; the 18-month delay was not shown to be intentional or to cause prejudice to the Defendant, so the Plaintiff should be allowed to prosecute her claim

Reasoning

The court applied the Ivita v Kyumbu test and the factors in Mwangi S. Kimenyi. It found the Defendant contributed to the delay by filing his replying affidavit six months after service, that Covid-19 disrupted court operations, and that the alleged prejudice to defence witnesses was speculative, with no specific witness or document identified as lost.

p. 4

Legal principles established

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  • 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
  • Prolonged delay alone does not justify dismissal; the court must balance the plaintiff's right to be heard against the right to an expeditious trial

Court orders

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  1. 1.The application dated December 9, 2021 is dismissed
  2. 2.Costs of the application to be borne by the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)(2)(3)
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Mwangi S. Kimenyi v. Attorney General & another
    [2014] eKLR; Civil Suit Misc. No. 720 of 2009

    Test and factors for excusing or dismissing a suit for want of prosecution

  • Nilesh Premchand Milji Shah & another T/A Ketan Emporium v. M. D. Popat & another
    [2016] eKLR

    Delay must be well explained to the court's satisfaction

  • Admult Collos Limited v. Ndima Tea Factory Limited
    [2021] eKLR

    Prolonged delay alone should not prevent the court from doing justice

  • George Gatere Kibata v. George Kuria Mwaura & another
    [2017] eKLR

    Prolonged delay alone should not prevent the court from doing justice

  • Ivita v. Kyumbu
    [1984] KLR 441

    The test: whether delay is prolonged and inexcusable and whether justice can be done despite it

Jurisdiction invoked
Order 17 Rule 2 of the Civil Procedure Rules; article 159 of the Constitution

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, "Fiona Mutheu Mbeta v Josephat Musyoka Ndambuki", Case Analysis (2023). Environment & Land Case 117 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18731/eng@2023-07-05

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