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ELCOther· [2024] KEELC 6013 (KLR)

Nyaga v Gichovi & 6 others (Environment & Land Case 19 of 2019) [2024] KEELC 6013 (KLR)

Environment and Land Court
25 April 2024
AKA. Kaniaru
2,766 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu (A. Kaniaru J) on a Notice of Motion dated 14.04.2023 by the 1st to 7th Defendants seeking dismissal of the Plaintiff's suit, filed on 25.06.2019, for want of prosecution. The Defendants argued that the Plaintiff had taken no significant step since 20.08.2020, had missed several court dates, had not complied with Order 11 or filed his trial bundle, and had lost interest in the suit. The Plaintiff opposed, stating he had filed his trial bundle with the suit, that pre-trial had stalled partly because the Defendants had not served their own trial bundle, and that he and his advocate had been attending court. The court examined the record and found the matter had been actively before it at various mentions after 20.08.2020, with the longest period of inactivity being roughly five months between the ruling on an interested party's joinder application (15.10.2020) and the deputy registrar's notice (19.03.2021). Since Order 17 Rule 2 requires one year of inactivity before a suit may be dismissed, the court held the application was premature. However, it noted the Defendants had been more diligent and the Plaintiff had admittedly not filed his trial bundle. The motion was not allowed, but the court directed the Plaintiff to file and serve his trial bundle within 14 days, set a case conference within 21 days, and directed that the suit be prosecuted within 90 days, failing which it would stand dismissed, with costs of the application awarded to the Defendants.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

The application was premature because there had been no period of inactivity exceeding one year; instead the court granted a structured timeline to prosecute the suit, with automatic dismissal if not met.

Reasoning

The court reviewed the record and found inactivity only between 15.10.2020 and 19.03.2021, about five months. Although the plaintiff had not filed his trial bundle and the defendants had been more active, Order 17 Rule 2 requires one year of inactivity before dismissal. The court nevertheless noted the suit, filed in 2019, had lingered at pre-trial for about four years and issued timelines for filing the trial bundle, case conference and prosecution of the suit.

p. 5

Legal principles established

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  • A suit may only be dismissed for want of prosecution after one year of inactivity, and a suit stands dismissed automatically after two years of no step

Court orders

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  1. 1.The plaintiff shall file and serve his trial bundle within the next 14 days of this ruling to all the defendants inclusive of the 5th defendant
  2. 2.The matter shall be set down for case conference within the next 21 days
  3. 3.After case conference the suit shall be prosecuted within 90 days failure to which the suit will stand dismissed
  4. 4.The defendants shall have the costs of this application
  5. 5.The timelines given herein should be adhered to unless the respondent, for good reason to be given to court, is unable to comply

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 48, 50(1), 159(2)
  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure Rules, 2010Order 17 rules 2, 3 and 4
  • Civil Procedure Rules, 2010Order 11

Cases cited (11)

  • London Distillers (K) Ltd v Philip Kipchirchir & 2 others
    (2007) eKLR
  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 others
  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others
    Civil Appeal no. 25 of 2002 (2009) eKLR 229
  • Trade Circles Ltd v Family Bank Ltd & Anor
    2021 eKLR
  • Richard Ncharpi Leiyagu v IEBC & 2 others
    CA 18/2013
  • Gideon Sitelu Konchella v Daima Bank Ltd
    (2013) eKLR
  • Thomas Mwaura Gitau & Anor v Eric Muhati & 2 others
    (2012) eKLR
  • Mobile Kitale Service Station v Mobil Oil Kenya Ltd & Anor
    Civil Case No. 205 of 1990
  • Ochola Kamili Holdings Ltd v Guardian Bank Ltd
    (2018) eKLR
  • Thathini Development Company Ltd v Mombasa Water & Sewerage Company & Anor
    (2022) eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & Anor
    (2016) eKLR
Jurisdiction invoked
Articles 48, 50(1) and 159(2) of the Constitution of Kenya, 2010; Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act; Order 17 rules 3 and 4 of the Civil Procedure Rules, 2010

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, "Nyaga v Gichovi & 6 others (Environment & Land Case 19 of 2019) [2024] KEELC 6013 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6013/eng@2024-04-25

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