Trustees of the Catholic Diocese of Kitale v Solmat Enterprises of Kitale & another (Environment and Land Case 71 of 2020) [2026] KEELC 1826 (KLR)

5. The law is that a plaintifi has the primary duty to take steps to prosecute his case. When there is laxity to do so, the court, after satisfying itself that there is an inordinate and inexcusable delay, an abuse of the court process, or there will be prejudice to the other side or in the interest of justice, may dismiss a suit for want of prosecution. See Wilson Kiarie Njoroge -vs- Family Bank Limited & another [2015] KEHC 1350 (KLR). 6. In Dock Workers Union of Kenya -vs- Kenya Ports Authority; Portside Freight Terminals Limited & another (Interested Parties) [2022] KEHC 12951 (KLR), Mativo J, as he then was, held that the rules permit a court, in appropriate circumstances, to dismiss a suit for want of prosecution. 7. The court said that an intention not to prosecute a suit might be inferred when there is an inordinate delay. The court held that in such a case, a court is called to exercise its discretion to reinstate a dismissed suit. For the applicant to take advantage of the court's discretion does not show what prevented him from prosecuting his case. The court held that suficient cause means something beyond the reach of the party and that he was not negligent or inactive. The court has not defined the maximum or minimum delay. Delay defeats equity. 8. In Ivita -vs- Kyumbu [1984] KLR 441, the court held that the test is whether the delay is prolonged or inexcusable. The court further held that justice is justice to the two parties. 9. In this application, the applicant alleges that there is an error apparent on the face of the record, as this file and ELC No. 33 of 2021 were to be heard together. The order consolidating or setting out such directions has not been attached. Copies of proceedings to show that the plaintifi appeared in the ELC No. 33 of 2021 with the mistaken belief that the two files were to be heard together are not before this court. 10. Assuming that the applicants' lawyers were not in court when ELC No. 33 of 2021 proceeded, where the plaintifi is the 2nd plaintifi. It defeats logic why they did not bring it to the court's attention that this file was missing in the cause list, yet the two files were to be heard together. 11. The court record shows that this file was mentioned several times, in the absence of the plaintifi or his counsel on record. A case belongs to the party. It is the plaintifi who should have been vigilant to prosecute his case. It appears that the plaintifi abandoned its duties not once or twice but severally until the court had no option but to dismiss the suit. 12. The plaintifi is not denying that there was inaction on his part, and neither is he disputing service with the notice to show cause before the suit was dismissed for non-prosecution. Further, the plaintifi has not attached anything from ELC No. 33 of 2021 to show that he was attending court in the said file and was ready to proceed in the matter. 13. As it stands, the plaintifi is being economical with the truth. He seeks to have the two filed heard concurrently, when there is already a judgment delivered in ELC No. 33 of 2021. It appears that the applicant, who is also a party in ELC No. 33 of 2021, is not aware of what happened in the said suit, or if he is, he is then asking the court to act in vain by reinstating this suit to be heard with a concluded file. 14. Lethargy and inertia in prosecuting a suit without suficient cause make it a suit proper and suitable for dismissal for want of prosecution. 15. In Karuturi Networks Limited & another -vs- Daly & Figgis Advocates [2009] eKLR, the court held that courts are in the driver's seat in civil processes, to hold the steering wheel of the process firmly, in order to attain its overriding objectives under the law and the Constitution. In doing so, the court held https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1826/eng@2026-03-24 2

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that it includes inter alia, reducing delay and cost expenses, and at the same time acting expeditiously and fairly. 16. The court further held that to operationalize or implement the overriding objective, it calls for new thinking, innovation, and the active management of cases before the court. 17. In Njue Ngai -vs- Ephantus Njiru Ngai & Another [2016] eKLR, the court held that dismissal of a suit for non- attendance or non-prosecution by a plaintifi amounts to a judgment. 18. Whether to set aside or not, such an order depends on whether there is suficient cause, reasons, or explanation for the non-attendance or non-prosecution. Delay and prejudice to the other party and the interest of justice must also be considered. The court is mainly concerned with doing justice to the parties, as held in Patel -vs- E.A Cargo Handling Services Ltd (1974) E.A. 19. What I find disturbing is that the plaintifi, instead of owning up to the mistake, is solely blaming the court for an alleged error or mistake. The plaintifi knew that the matter had been allocated another date the last time it was in court. 20. The plaintifi is silent on whether it went into slumber or what he was waiting upon, if not positive or negative consequences. A case belongs to a party, and a party that sits and thinks the court is unable to discharge its mandate one way or the other must come to terms that failure to prosecute suits or inactions on the part of the plaintifi is fatal. 21. Suficient cause literally means that an applicant must show that he was not negligent, there was no inaction or want of bona fides. See Registered Trustees of the Archdiocese of Dar es Salaam -vs- The Chairman, Bunju Village Government and 11 Others, Civil. Appeal No. 147 of 2006. 22. The delay herein has not been explained from the last mention to the dismissal and soon thereafter. The applicant was not following up on the matters. See Patrick Wanyonyi Khaemba -vs- Teachers Service Commission, Board of Management, Kapletingi Mixed Day Secondary School & Francis Tanui [2019] KECA 112 (KLR). 23. Where there is no valid excuse for the delay. The court must guard itself against the dangers of being led by sympathy. In Parimal -vs- Veena [2011] 3 SCC 545, the Supreme Court of India held that suficient cause means adequate, enough, based on the circumstances and facts in issue. 24. This suit was dismissed after several mentions in the absence of the plaintifi, who has not in any way shown suficient cause. The alleged error is not demonstrated. 25. The upshot is I find the application incompetent and lacking merit. It is therefore dismissed with costs. 26. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE, THIS 24TH DAY OF MARCH 2026. HON. C.K. NZILI JUDGE, ELC KITALE. In the presence of: Court Assistant - Dennis No appearance. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1826/eng@2026-03-24 3

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