Stephen v Warima & 2 others (Environment & Land Case E051 of 2006) [2025] KEELC 930 (KLR)

suit raises weighty issues which ought to be ventilated at a full hearing. That it would be in the interest of justice if the orders sought are allowed. 4. Despite being served with the said application, the Respondents did not file any response. 5. The sole issue for determination in this application is whether there are suficient reasons to reinstate this suit. From the record, this suit was dismissed on 17/10/2008 for want of prosecution pursuant to the provisions of Order 17 Rule 2 of the Civil Procedure Rules, which provides as follows: 6. 1. In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit dismissed, and if cause is not shown to its satisfaction, may dismiss the suit. 2. If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit. 3. Any party to the suit may apply for its dismissal as provided in sub-rule 1. 4. The court may dismiss the suit for non-compliance with any direction given under this Order. It is trite law that the power to dismiss a suit for want of prosecution is at the discretion of the court. In Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium v M.D. Popat and others & another [2016] eKLR, the court stated as follows: “ 11. Nonetheless, Article 159 of the Constitution and Order 17 Rule 2(3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay. This is what the case of Ivita vs Kyumba [1984] KLR 441 espoused that: “The test applied by the courts in the application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the plaintifi’s excuse for the delay, and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter of and in the discretion of the court.” 7. As to what constitutes notice under Order 17 rule 2, the court in Kestem Company Ltd v Ndala Shop Limited & 2 others [2018] eKLR was of the view that it did not require service of notice: “ Order 17 Rule 2 (1) of the Civil Procedure Rules does not require service of notice; it uses the word “may give notice”. 8. From my perusal of the file, I note that on the day the suit was dismissed the court in its coram noted; 17/10/2008. Call over. Coram Before S.Shitubi DR https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/930/eng@2025-02-20 2

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CC: Harun N/A for the plaintifi N/A fot the Defendant Ct Order: Dismissed for want of prosecution *Signed* Judge 26.1.09 9. From the above, it is clear to me that there was a cause-list that was published notifying the parties of the intended dismissal. Further and looking at the date of the dismissal, the same was about 2 years and 2 months from the date the suit was filed. From the record, it seems the plaint was never even served upon the defendants as there is no afidavit of service to that efiect. 10. 16 years after the said dismissal, the Plaintifi/Applicant now wants to reinstate the suit on grounds that he has been unwell. It is a basic principle in law that he who alleges must prove. However, nothing has been placed before the court to show that the Plaintifi/Applicant was indeed unwell. He faults his counsel for lack of attention in prosecuting the suit. The plaintifi/Applicant having not provided any proof of illness, the allegation that he was sick remains a mere unsubstantiated allegation that cannot be a reason for failing to follow up on his case. He was simply indolent in prosecuting his case. See Habo Agencies Limited Vs. Wilfred Odhiambo Musiingo (2020) eKLR. Further, courts have held for the umpteen time that cases belong to litigants and not advocates as was held by Kimaru J in Savings and Loans Limited v Susan Wanjiru Muritu Nairobi HCCC 397/2002 and further that the plaintifi/ applicants should have followed up with their advocate. 11. I am not persuaded by the arguments by the plaintifi/applicant for his non-attendance and his failure to have this suit prosecuted since 2006 when it was filed or to file the current application sooner. A delay of 16 years without explanation in my view is inordinate and inexcusable. 12. Consequently, the said notice of motion application dated 25/11/2024, is without merit and the same is hereby dismissed in its entirety with no orders as to costs. 13. Orders accordingly. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 20TH DAY OF FEBRUARY, 2025. …………………………….. HON.E.C CHERONO ELC JUDGE In the presence of; Mr Shikhu for the Plaintifi/Applicant. Defendant/Respondent-absent. Bett C/A. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/930/eng@2025-02-20 3

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