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ELCDismissedNot stated in judgment· [2025] KEELC 1304 (KLR)

Laboso & 34 others v Mageto & 2 others; Mara Coffee Millers & another (Applicant) (Environment & Land Case 8 of 2023) [2025] KEELC 1304 (KLR)

Environment and Land Court
18 March 2025
1,457 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The court refused to dismiss a 2018 land suit because the defendants used the wrong legal rule and the case was still active.

What this practically means

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Executive summary

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The 4th and 5th Defendants, by a Notice of Motion dated 4th November 2024 supported by the affidavit of Shantilal Kanji Shali, sought dismissal of a land suit (concerning Land Parcel Transmara/Moyoi/165) for want of prosecution and as an abuse of the court process, invoking sections 1B and 3A of the Civil Procedure Act. They argued the suit, filed in 2018, had lain dormant, that the plaintiffs frustrated an October 2024 hearing, and that they were enjoying orders curtailing enjoyment of the suit premises while showing disinterest in prosecuting the suit. The plaintiffs opposed, contending the delays were attributable to factors beyond their control (including a file being called by the Judicial Service Commission following complaints against a previous judge), that the applicants had been joined only in April 2023, and that the application cited no proper enabling provision since only Order 17 of the Civil Procedure Rules allows dismissal for want of prosecution. Applying the Supreme Court's exposition of lex specialis derogat legi generali in Judith Nyagol v Judicial Service Commission, the court held that the application, founded only on general provisions while specific provisions existed (Order 17 and Order 2 Rule 15), could not succeed as drafted. On the merits, the record showed the suit was active, with hearing dates as recent as October 2024, so there was no inactivity to warrant dismissal. The court also expunged paragraphs 12 to 25 of the plaintiffs' Replying affidavit containing scandalous remarks against previous judges, gave directions for filing and exchange of documents within 42 days, set a compliance mention before the Deputy Registrar for 5th May 2025, and dismissed the application with costs in the cause.

Key legal issues

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01

Whether the orders sought can be granted in the application as drafted

Holding

No - specific provisions (Order 17 and Order 2 Rule 15 of the Civil Procedure Rules) existed for the relief sought, and an application founded only on the general section 3A cannot yield the orders sought

Reasoning

Relying on the Supreme Court's exposition of lex specialis derogat legi generali, the court held that where specific rules deal with dismissal for want of prosecution and striking out for abuse of process, a party must invoke those provisions rather than the court's general inherent jurisdiction under section 3A. The application as drafted therefore could not succeed.

p. 3
02

Whether the suit should be dismissed for want of prosecution

Holding

No - the record showed the suit was active, with hearing dates having been taken as recently as October 2024, so there was no inactivity warranting dismissal

Reasoning

The court perused the record and found that although the suit was filed in 2018, it had been active, with hearing dates issued in October 2024 when the matter did not proceed. The applicants were joined only on 17th April 2023 and trial bundles had been filed. The application was therefore found to lack merit.

p. 3

Legal principles established

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  • Under lex specialis derogat legi generali, where specific procedural provisions govern dismissal of a suit for want of prosecution or abuse of process, they must be invoked instead of the general inherent jurisdiction under section 3A

Court orders

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  1. 1.Paragraphs 12 to 25 of the Replying affidavit of Paul Laboso deponed on 04.11.2024 are expunged from the affidavit
  2. 2.Parties directed to file and exchange documents, witness statements and list of issues within 42 days, with the plaintiffs and their counsel having 21 days and the defendants 21 days after service
  3. 3.Matter to be mentioned before the Deputy Registrar for compliance on 05.05.2025, whereafter a pre-trial conference date shall be given before the court
  4. 4.Application dated November 4, 2024 dismissed with costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Civil Procedure RulesOrder 2 Rule 15(1)(d)
  • Civil Procedure RulesOrder 19 Rule 6

Cases cited (2)

  • Kenya Power and Lighting Co. Ltd v Benzene Holdings Limited Hayco Paints
    [2016] eKLR
  • Judith Nyagol v Judicial Service Commission and the Chief Registrar of the Judiciary
    Petition No. E015 of 2024
Jurisdiction invoked
Sections 1B and 3A of the Civil Procedure Act (application under those provisions)

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, "Laboso & 34 others v Mageto & 2 others; Mara Coffee Millers & another (Applicant) (Environment & Land Case 8 of 2023) [2025] KEELC 1304 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1304/eng@2025-03-18

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