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ELCAllowedELC Case No. 108 of 2019 (0S)· [2026] KEELC 5457 (KLR)

Christopher Chepkiyeng v Raphael Ayabei Serem, Vincent Lelei, Nelson Chepkiyeng & Joseph Kibet

Environment and Land Court
17 September 2026
EWEmmanuel M. Washe
2,363 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 dispute filed in 2019 was thrown out because the plaintiff did nothing for over four years, and must now pay the winners' costs.

What this practically means

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Executive summary

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The 1st to 4th Defendants in ELC Case No. 108 of 2019 (0S) at Eldoret filed a Notice of Motion dated 25.03.2025 seeking dismissal of the Plaintiff's suit for want of prosecution and costs. The suit, filed on 17.09.2019, was last in court on 24.05.2021 - a fact admitted by both sides. The Defendants argued that under Order 17 Rule 2(5) of the Civil Procedure Rules, 2010, the suit stood automatically dismissed after two years of inaction. The Plaintiff opposed, citing the COVID-19 pandemic's disruption of court operations, personal health challenges, ongoing settlement negotiations, and his advocate's failure to update him, and committed to prosecute the suit expeditiously. Justice Emmanuel M. Washe framed four issues: the last listing date, whether the failure to prosecute terminated the suit, whether the application was merited, and costs. The court found COVID-19 disruptions lasted under a year, no documentary evidence supported the health claim, no minutes or admission substantiated negotiations, and blaming the advocate is insufficient since the client bears a duty to pursue the matter (applying Ivita v Kyumbu and Habo Agencies Ltd v Wilfred Odhiambo Musingo). Finding no satisfactory explanation for over four years of inaction, the court held it had no alternative but to dismiss the suit. The application was allowed, the plaint dated 17.09.2019 was dismissed for want of prosecution, and the Plaintiff was condemned to pay costs of both the application and the main suit.

Key legal issues

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01

Whether the suit stood automatically dismissed under Order 17 Rule 2(5) after two years of inaction

Holding

The suit had not been prosecuted since 24.05.2021 and the Respondent's explanations (COVID-19, ill health, negotiations, blame of advocate) were unsupported and insufficient; the suit was dismissed for want of prosecution.

Reasoning

The court accepted the admitted last listing date of 24.05.2021. It found COVID-19 court disruptions lasted under a year, no documentary evidence supported ill health, no minutes or admission supported settlement talks, and blaming the advocate is not a sufficient reason. With no satisfactory explanation for over four years of inaction, Order 17 Rule 2(5) mandated dismissal.

p. 8
02

Whether the application was merited and who bears costs

Holding

The application was merited and allowed; the successful Applicants were awarded costs against the Respondent.

Reasoning

Following the finding that no adequate reason explained the delay, the court held the application merited and, as the Applicants succeeded, awarded costs of both the application and the main suit to them, payable by the Respondent.

Legal principles established

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  • Where no step has been undertaken in a suit for two years, the suit stands dismissed under Order 17 Rule 2(5), and in the absence of a satisfactory explanation the court has no alternative but to dismiss it for want of prosecution.
  • It is not sufficient reason for a party to blame the advocate for failing to give updates; the client bears responsibility to pursue the matter.

Court orders

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  1. 1.The Notice of Motion dated 25.03.2025 be and is hereby allowed
  2. 2.The plaint dated 17.09.2019 be and is hereby dismissed for want of prosecution
  3. 3.The Respondent is condemned to pay costs of both the present application and the main suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 17 Rule 2(5)

Cases cited (4)

  • IVITA-VERSUS-KYUMBU (1984) KLR,441
    (1984) KLR 441

    Prolonged and inexcusable delay without sufficient reason justifies dismissal of suit.

  • HABO AGENCIES LIMITED-VERSUS-WILFRED ODHIAMBO MUSINGO (2016) KECA 477 (KLR)
    (2016) KECA 477 (KLR)

    Client cannot simply blame advocate for failure to inform; client bears duty to pursue matter.

  • Rajesh Rughani -v- Fifty Investments Limited & Another (2005) eKLR
    (2005) eKLR

    Quoted within Habo Agencies: not enough to accuse advocate; client has duty to pursue matter.

  • Bains Constructions Co. Limited -v- John Mzare Ogowe (2011) eKLR
    (2011) eKLR

    Principal bears consequences where agent fails to perform directed duties.

Jurisdiction invoked
Order 17 Rule 2(5) of the Civil Procedure Rules, 2010 (dismissal for want of prosecution)

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, "Christopher Chepkiyeng v Raphael Ayabei Serem, Vincent Lelei, Nelson Chepkiyeng & Joseph Kibet", Case Analysis (2026). ELC Case No. 108 of 2019 (0S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5457/eng@2026-09-17

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