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ELCDismissedNotice of Motion dated 21.10.2022 (in pending ELC suit)· [2024] KEELC 1018 (KLR)

Njeru v Kariuki & 2 others (Environment & Land Case 22 of 2022) [2024] KEELC 1018 (KLR)

Environment and Land Court
22 February 2024
2,638 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The court refused to dismiss a land suit for delays because it had been inactive for just under one year, not the 12 months the law requires.

What this practically means

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Executive summary

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The 2nd Defendant, Severino Nyaga Machecho, moved the Environment and Land Court at Embu by Notice of Motion dated 21.10.2022 under Order 17 Rule 2, Order 51 of the Civil Procedure Rules and Section 26 of the Land Registration Act, seeking dismissal of the Respondent Erasmus Ireri Njeru's suit for want of prosecution, a declaration that he is the absolute owner of Evurore/Nguthi/2294, and costs. He argued the suit, filed in Siakago in November 2020 and transferred to the ELC by ruling delivered in November 2021, had lain dormant for three years, causing prejudice to him as an elderly registered proprietor in occupation. The Respondent countered that the Court Administrator never notified him of the transfer, a pending injunction application dated 27.11.2020 remained undetermined, the one-year inactivity period had not lapsed, and the defendants had not complied with Order 11. The court framed one issue: whether the suit should be dismissed for want of prosecution. Relying on Order 17 Rule 2 and the Ivita v Kyumba line of authorities, the court held an applicant must satisfy the one-year threshold, show inordinate and inexcusable delay, and demonstrate prejudice. It found 11 months and 14 days had elapsed, below the statutory 12 months, and although the delay was inordinate, the matter was not ripe for dismissal. The respondent's claim of ignorance of the transfer was rejected as false since the transfer ruling was delivered in his advocate's presence. The application dated 21.10.2022 was dismissed with no order as to costs, with the respondent directed to expedite fixing of the suit for hearing.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2

Holding

Application dismissed; the 11-month delay was inordinate but below the statutory 12-month threshold and interests of justice favoured allowing the respondent to prosecute his claim

Reasoning

The court found the period between the transfer order and the application was 11 months and 14 days, below the 12 months required by Order 17 Rule 2. Though the delay was inordinate given the court's own efforts to move the matter along, the applicant failed to meet the statutory threshold and did not demonstrate that dismissal would serve the interests of justice.

p. 5
02

Whether the respondent's claim of ignorance of the transfer was credible

Holding

Rejected; the transfer ruling was delivered in the presence of the respondent's advocate

Reasoning

The court examined the lower court's ruling and found it was delivered in the presence of the respondent's advocate, contradicting the respondent's claim that he only learned of the transfer on 16.12.2022 upon being served with a mention notice by the applicant's advocate.

p. 5

Legal principles established

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  • A suit must be pending for 12 months with no step taken before dismissal for want of prosecution under Order 17 Rule 2
  • Applicant for dismissal for want of prosecution must show inordinate delay, inexcusable delay and prejudice

Court orders

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  1. 1.Application dated 21.10.2022 dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 11
  • Land Registration ActSection 26
  • Civil Procedure ActSections 1A, 1B and 63(e)
  • Constitution of KenyaArticle 159

Cases cited (8)

  • Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Ltd
    [2010] eKLR
  • Kisuse v Mohamed Matari
    [2021] eKLR
  • Vita v Kugumba
    [1984] KLR 441
  • Utalii Transport and Others v NIC Bank & another
    [2014] eKLR
  • Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v M.D. Popat and others & another
    [2016] eKLR
  • Invesco Assurance Company Limited v Oyange Barrack
    [2018] eKLR
  • Ivita v Kyumba
    [1984] KLR 441
  • Argan Wekesa Okumu v Dima College Limited & 2 others
    [2015] eKLR
Jurisdiction invoked
Order 17 Rule 2 and Order 51 of the Civil Procedure Rules; Section 26 of the Land Registration Act 2012

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, "Njeru v Kariuki & 2 others (Environment & Land Case 22 of 2022) [2024] KEELC 1018 (KLR)", Case Analysis (2024). Notice of Motion dated 21.10.2022 (in pending ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1018/eng@2024-02-22

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