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ELCDismissedMachakos ELC (unnumbered Notice of Motion dated 12th May 2024)· [2025] KEELC 4992 (KLR)

Muinde & 6 others v Bogaa Investment Limited & 11 others (Environment & Land Case E016 of 2022) [2025] KEELC 4992 (KLR)

Environment and Land Court
25 June 2025
NMN. A. Matheka
1,921 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to dismiss a dormant lawsuit because less than a year had passed, and instead ordered the parties to set a hearing date within 30 days.

What this practically means

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Executive summary

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This was a notice of motion dated 12th May 2024 by the Defendant, Justin Irina, seeking dismissal of a land suit for want of prosecution under Order 17 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The Plaintiffs had filed a plaint in March 2022 seeking injunction, cancellation of titles, a declaration of adverse possession and damages over various parcels in Machakos. The Defendant contended that the Plaintiffs had been indolent: they repeatedly failed to comply with pre-trial directions, their original advocates' firm ceased operations, their new advocate failed to regularise his appointment or file documents, and they were absent at successive mentions, with 11 months elapsing since they were last before the court. The application was served but unopposed and proceeded ex parte. Matheka J reviewed Order 17 Rule 2 and the settled principles from Nilesh Premchand Mulji Shah, Ivita v Kyumba, Argan Wekesa Okumu and Naftali Opondo Onyango: dismissal is discretionary and requires inordinate, inexcusable delay likely to prejudice the defendant, while courts should be slow to dismiss where the suit can proceed. Although finding that the Plaintiffs had failed and neglected to fix the matter for hearing with no excuse offered, the court held that under Order 17 Rule 2(1) a full year had not lapsed and, this being a land matter, the suit could not be dismissed at that stage. The application was dismissed with parties directed to fix a hearing within 30 days and costs in the cause.

Key legal issues

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Whether the Plaintiffs' delay justified dismissal of the suit for want of prosecution

Holding

The application was dismissed because less than one year had lapsed under Order 17 Rule 2(1) and the court considered it premature to dismiss a land matter

Reasoning

The court reviewed Order 17 Rule 2 and authorities establishing that dismissal is discretionary and requires inordinate, inexcusable delay causing prejudice. Although the Plaintiffs had not complied with directions and had not appeared, the court found steps had been taken within the year and the statutory threshold of one year had not been met, so the suit should proceed rather than be terminated.

p. 4

Legal principles established

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  • The power to dismiss a suit for want of prosecution is discretionary and must be exercised judiciously in the interest of justice, considering whether the delay is inordinate, inexcusable and prejudicial
  • 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
  • A court will be slow to dismiss a suit where the hearing can proceed without further delay and there is no flagrant and culpable inactivity by the plaintiff

Court orders

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  1. 1.The application dated 12th May 2024 seeking dismissal of the suit for want of prosecution is dismissed
  2. 2.The parties to fix a hearing date within the next 30 days
  3. 3.Costs of the application to be in the cause
Jurisdiction invoked
Order 17 Rule 2 and Order 51 Rule 1 Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Muinde & 6 others v Bogaa Investment Limited & 11 others (Environment & Land Case E016 of 2022) [2025] KEELC 4992 (KLR)", Case Analysis (2025). Machakos ELC (unnumbered Notice of Motion dated 12th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4992/eng@2025-06-25

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