REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC SUIT NO. 629 OF 2011 PAULINE NJERI THANDE.....................................................PLAINTIFF VERSUS SOLOMON KIRAGU THANDE.................................1ST DEFENDANT ELIZABETH WAMBUI MUIGAI..............................2ND DEFENDANT MATHEW NGUGI MURIGI.......................................3RD DEFENDANT JOTHAM KAHARA NDIANGUI................................4TH DEFENDANT IRENE WAIRIMU GICHUNGO.................................5TH DEFENDANT WALTER NGUGI MWANIKI.....................................6TH DEFENDANT FAITH NKATHA MAKEBU KIUNGA.......................7TH DEFENDANT ANTHONY WAWERU NDERU...................................8TH DEFENDANT BENSON NGUGI NJERI..............................................9TH DEFENDANT EVAH NYAMBURA NGUGI......................................10TH DEFENDANT SIMON NG’ANG’A.....................................................11 TH DEFENDANT PERIS WAHINYA........................................................12 TH DEFENDANT MAINA ISAAC MURAGE..........................................13TH DEFENDANT SYLVIA ANYANGO OHAGA.....................................14TH DEFENDANT JAMES MWANGI KARIUKI......................................15TH DEFENDANT SARAH WAIRIMU.......................................................16 TH DEFENDANT GEORGE KYALO MACHENZIE...............................17TH DEFENDANT DOMINIC NJENGA KIRUTHI...................................18TH DEFENDANT GERALD MBUGUA NGIGI........................................19TH DEFENDANT ZAKAYO KURIA.......................................................20 TH DEFENDANT
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JANE MAINA................................................................21 ST DEFENDANT GRACE WAHU IKINYA...............................................22ND DEFENDANT JOHN NDUNGU............................................................23 RD DEFENDANT GATHIGIA GATHERU...............................................24 TH DEFENDANT MUTHONI NYOIKE..................................................25 TH DEFENDANT AND JEREMIAH MATOKE NYANGWARA & 21 OTHERS……………………………………..INTERESTED PARTIES RULING What is before me is a Notice of Motion application dated 16 th May, 2019 brought by the interested parties seeking an order that this suit be dismissed for want of prosecution and in the alternative on the ground that the same has abated. The application that was brought under Order 12 Rule 2 (sic) of the Civil Procedure Rules and Sections 3A and 1B of the Civil Procedure Act, Chapter 21 Laws of Kenya was supported by the affidavit of the 1st interested party, Jeremiah Matoke Nyangwara. The application was brought on the grounds that the 1 st defendant Solomon Kiragu Thande died on 19 th October, 2013 and that the plaintiff and one, Kariuki Peter Thande were appointed as the administrators of his estate on 30 th May, 2017. The interested parties contended that the plaintiff had refused to substitute the deceased 1 st defendant so that she could proceed with the suit. The interested parties averred that the plaintiff’s suit as against the 1 st defendant had abated and that it was only fair and just that the suit be dismissed. The application came up for hearing on 8 th October, 2020 when Mr. Babu appeared for the interested parties/applicants while Mr. Mwangi appeared for the 2nd to 25th defendants. Mr. Babu urged the court to allow the application since the same was unopposed. Mr. Mwangi supported the application by the interested parties. He argued that the plaintiff had lost interest in the suit. I have considered the interested parties’ application together with the affidavit filed in support thereof. I am of the view that the application was brought under the wrong provisions of the Civil Procedure Rules. An application for dismissal of a suit for want of prosecution should have been brought under Order 17 Rule 2 of the Civil Procedure Rules while the alternative prayer seeking the dismissal of the suit on the ground that the same had abated should have been brought under Order 24 Rule 4 of the Civil Procedure Rules. On the merit of the application, I am of the view that there is no basis for the dismissal of the suit for want of prosecution. The interested parties’ application was filed on 18th May, 2019. As at the time the application was filed, the suit had come up before the court for the last time on 11 th March, 2019 for the parties to inform the court of the progress of the out of court settlement negotiations that they were engaged in. As at the time the application before the court was filed, it was barely two (2) months from the time the suit was last in court. Under order 17 Rule 2 of the Civil Procedure Rules, an application for the dismissal of a suit for want of prosecution can only be brought where a plaintiff has not taken action in a suit for at least one (1) year. As I have shown above, that is not the case in the matter before me. Due to the foregoing, the interested parties’ application was filed prematurely to the extent that it sought the dismissal of the suit for want of prosecution. With regard to the limb of the application that sought the dismissal of the suit on account of abatement following the death of the 1 st defendant, I find merit in the same but only as concerns the plaintiff’s claim as against the 1 st defendant. It is not disputed that the 1 st defendant died on 19th October, 2013 and that no steps have been taken to substitute him in this suit by his legal representatives. Under Order 24 Rule 4(3) of the Civil Procedure Rules, the plaintiff’s suit as against the 1 st defendant abated by operation of law after the expiry of one year from the date of his death. The plaintiff’s suit as against the other defendants has however not abated. Due to the foregoing, the interested parties’ application dated 16 th May, 2019 succeeds in part. I decline to dismiss the suit for want of prosecution. I however order that the plaintiff’s suit as against the 1 st defendant has abated. The costs of the application shall be in the cause. Dated and Delivered at Nairobi this 19th Day of November 2020 S. OKONG’O JUDGE Ruling delivered through Microsoft Teams Video Conferencing Platform in the presence of: N/A for the Plaintiff Ms. Mwangi h/b for Mr. Ngugi for the 2nd to 25th Defendants Mr. Ochieng h/b for Mr. Babu for the Interested Parties
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Ms. C. Nyokabi-Court Assistant
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