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ELCDismissedLand Case 78 of 2019· [2023] KEELC 20306 (KLR)

Kaoyeni Community Self-Help Group & 3 others v Rama 8 others

Environment and Land Court
28 September 2023
1,259 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (E. K. Makori, J) determined a notice of motion dated 12th February 2023 by which the 1st defendant sought dismissal of the suit, filed in September 2019, for want of prosecution. The 5th defendant supported the application, while the plaintiff and the 2nd, 3rd and 4th defendants opposed it. The applicant argued that the suit and a pending injunction application had lain idle since 2019, causing anxiety and evincing lack of interest, invoking Article 159(2) of the Constitution and Sections 1A and 1B of the Civil Procedure Act. The plaintiff attributed the delay to COVID-19 restrictions, the death of the 5th defendant from COVID-19 and the consequent need for substitution, and ongoing communication between parties; the 3rd, 4th and 5th defendants conceded they had contributed to the delay. The court framed a single issue: whether the suit should be dismissed for want of prosecution with costs. Applying the Ivita v Kyumbu test and reviewing the record, the court found the delay attributable to counsel for the parties, COVID-19 restrictions, the 5th defendant's demise and failure to substitute, and the court's own lack of active case management. Holding the plaintiff was not solely to blame, the court dismissed the application with no order as to costs and directed that a mention date be issued forthwith to fix a hearing date, in the interest of active case management.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

Application dismissed; delay not solely attributable to the plaintiff

Reasoning

The court applied the Ivita v Kyumbu test. The record showed the delay arose from counsel for the parties, COVID-19 restrictions, the death of the 5th defendant from COVID-19 and failure to substitute, and the court's own lack of active case management. Since the plaintiff was not solely to blame and justice could still be done, dismissal was not warranted; the file was instead set down for active management.

p. 3

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
  • Where delay is occasioned by all parties and circumstances beyond the plaintiff alone, dismissal for want of prosecution will not issue

Court orders

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  1. 1.The application dated 12th February 2023 is dismissed with no order as to costs
  2. 2.A mention date be issued forthwith to fix a hearing date, as part of active case management

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSections 1A and 1B

Cases cited (5)

  • Thathini Development Company Limited v Mombasa Water & Sewerage Company & another
    [2022] eKLR

    Duty of court under overriding objective to dismiss unprosecuted suits and prevent clogging of the justice system

  • Josphat Oginda Sasia v Wycliffe Wabwile Kiiya
    [2022] eKLR

    Court need only give notice of intent to dismiss an unprosecuted matter

  • Fran Investments Limited v G4S Security Services Limited
    [2015] eKLR

    Notice of intent to dismiss unprosecuted matters

  • Jim Rodgers Gitonga Njeru v Al-Husnain Motors Limited & 2 others
    [2018] eKLR

    Notice of intent to dismiss unprosecuted matters

  • Ivita v Kyumbu
    [1984] KLR 441

    Leading test for dismissal for want of prosecution: prolonged and inexcusable delay and whether justice can still be done

Jurisdiction invoked
Inherent jurisdiction and overriding objective under Sections 1A and 1B of the Civil Procedure Act; Article 159(2) of the Constitution invoked by the applicant

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, "Kaoyeni Community Self-Help Group & 3 others v Rama 8 others", Case Analysis (2023). Land Case 78 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20306/eng@2023-09-28

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