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ELCDismissedNotice of Motion dated 21.10.2022 (suit over Evurore/Nguthi/2294)· [2024] KEELC 1617 (KLR)

Kikumu & another v Kariuki & 2 others (Environment & Land Case 11 of 2018) [2024] KEELC 1617 (KLR)

Environment and Land Court
22 February 2024
AKA. Kaniaru
2,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to dismiss a dormant land suit because 12 months of inactivity had not yet passed.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Embu (A. Kaniaru, J) on a Notice of Motion dated 21.10.2022 by the 2nd Defendant, Severino Nyaga Machecho, seeking dismissal of the plaintiff Erasmus Ireri Njeru's suit for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules, together with a declaration that he is the absolute owner of Evurore/Nguthi/2294. The applicant relied on his 1979 registration and continued possession, and argued the respondent had taken no steps for roughly three years since the transfer of the suit from Siakago Law Courts. The respondent countered that he was never notified of the transfer, that a pending injunction application dated 27.11.2020 remained undecided, that the defendants had not complied with Order 11, and that the one-year inactivity threshold had not lapsed. The court set out the Ivita v Kyumba principles: the applicant must establish a one-year lull, inordinate and inexcusable delay, and prejudice. Finding that only 11 months and 14 days had elapsed since the transfer ruling of 10.11.2021, and that the registry had failed to notify the respondent as directed, the court held the suit was not ripe for dismissal. Although it found the respondent's claim of ignorance of the transfer false, the court held the interests of justice favoured allowing him to prosecute his claim, subject to fixing the matter for hearing expeditiously. The application was dismissed with no order as to costs.

Key legal issues

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

Holding

The application fails because the one-year period of inactivity required by Order 17 Rule 2 had not expired, and the delay of 11 months and 14 days was not attributable to the respondent alone; the court itself had been moving the matter

Reasoning

The court found that the suit was transferred from Siakago to the ELC on 10.11.2021 and only 11 months and 14 days had elapsed by the date of the application. The registry had failed to notify the respondent as directed, and the court on its own motion had been issuing mention dates. The Ivita v Kyumba test of inordinate, inexcusable delay causing prejudice was not met. Interests of justice lie in sustaining the suit, with the respondent directed to fix it for hearing expeditiously.

p. 5

Legal principles established

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  • To succeed on an application for dismissal for want of prosecution, the applicant must satisfy the one-year threshold under Order 17 Rule 2, prove inordinate and inexcusable delay, and demonstrate prejudice
  • Delay caused or contributed to by court processes, falling short of the statutory 12 months, does not warrant dismissal; interests of justice favour sustaining the suit

Court orders

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  1. 1.The application for dismissal of the suit dated 21.10.2022 is declined and dismissed
  2. 2.No order as to costs
  3. 3.The respondent is required to expeditiously move to fix the matter for hearing
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kikumu & another v Kariuki & 2 others (Environment & Land Case 11 of 2018) [2024] KEELC 1617 (KLR)", Case Analysis (2024). Notice of Motion dated 21.10.2022 (suit over Evurore/Nguthi/2294). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1617/eng@2024-02-22

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