Luka Cherop Cheptoo, Jacob Kiptoo & Hosea Kiptum (suing as representatives of at least 50 members of Kapkiro Family) v The Board of Management, Chugor Primary School

respectively and suing as representatives of 50 members of KAPKIRO FAMILY) filed this suit on 10th October 2016 against the BOARD OF MANAGEMENT OF CHUGOR PRIMARY SCHOOL (Th Defendant). They sought various orders against the Defendants with respect to a parcel of land only identified in the plaint as “the plaintiff’s land at Chegar” on which they alleged the Defendant was trespassing. The details of the said trespass are not necessary for the purpose of this ruling. 2. The Defendant is yet to file its defence. 3. The Plaintiffs have not taken any steps towards prosecuting their case. On 17th February 2021, the Plaintiff’s suit was dismissed by HON. ODENY J. for want of prosecution. 4. I now have for my determination the Plaintiff’s Notice of Motion dated 3rd May 2024 and filed on the same day under certificate of urgency. The same is anchored on Sections 3 and 3A of the Civil Procedure Act and Order 12 Rule 7 and Order 50 Rule 1 of ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 2 of

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the Civil Procedure Rules. It is also based on the grounds set out therein and supported by the affidavit of JACOB KIPTOO the 2nd Applicant/Plaintiff herein. 5. The gist of the Motion is that: 1.Spent. 2.The Court order given on 17 th February 2021 dismissing the Plaintiffs suit for want of prosecution be and is hereby set aside forthwith. 3.This suit be and is hereby reinstated and listed for mention for the Plaintiffs to make a formal request for Judgment in default of appearance and/or defence and/or further directions of the Court. 4.Costs to the Plaintiff. 6. The Plaintiff’s case is that having filed this suit on 5 th May 2017, they served the Defendant on 22 nd May ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 3 of

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2017. The record however shows that their plaint is dated 10th October 2016 and was in fact filed originally at the Environment and Land Court Eldoret on the same day as Eldoret ELC Land Case No. 288 of 2016. That the Defendant defaulted to enter appearance and/or defence after service. That there was a long silence breakdown of communication between the Plaintiffs and their advocate between May 2017 and 18th April 2024. That the Plaintiffs had no prior notice of the progress of this suit until 18th April 2024 when they became aware of the order issued on 17th February 2021 dismissing their suit for want of prosecution. That it was their counsel who obtained that order from the court file at the Court’s archives. That they were not aware about the dismissal order and neither was their counsel served with any notice. 7. That their dispute with the Defendant is not over yet. That on 13th April 2024, the Defendant closed the gate to the school denying them access to their homes. The Defendant also built a dormitory and other structures on the land in dispute and also sealed all access thus going beyond the boundary of the portion of land ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 4 of

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donated. Annexed to the Motion is an affidavit of service dated 24th May 2017 confirming service of the plaint upon the Defendant (JKI). 8. The motion is opposed and LUKAS KIPTOO KANDA the Defendant’s Head Teacher has sworn a replying affidavit dated 17th October 2024. He has deponed therein, inter alia that this suit was filed in 2016 and for more than 5 years, the Plaintiffs di not move the court and the case was dismissed in 2021 for want of prosecution. 9. That he was informed by the state counsel on 2 nd October 2024 that the Attorney General received two letters from HENRY, HOSEA KIPKEMOI and HOSEA KIPTUM who are the Plaintiffs indicating that they are not aware of the matter and neither had they instructed anyone to act for them. Although the replying affidavit indicates that the said two letters have been annexed as annextures LKK 1 and 2, there were no such annextures. Indeed, when the matter came up before me for directions on 23rd February, I drew MS ODEYO state Counsel’s attention that the ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 5 of

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said two letters had in fact not been annexed to the replying affidavit and I advised her to ensure that they are filed. She did not attend court on the next mention date of 29th April 2026 and the said two letters have not been filed to-date. 10. I did direct that the Motion be canvassed by way of written submissions. Only MR. CHEPTARUS instructed by the firm of JOSEPH K. CHEPTARUS & COMPANY ADVOCATES for the Plaintiffs file submissions. I have therefore not had the benefit of the submissions by the Attorney General on behalf of the Defendant. 11. I have considered the Motion, the rival affidavits and the submissions by the Plaintiffs’ Counsel. 12. The Plaintiffs rely on Order 12 Rule 7 of the Civil Procedure Rules. It provides as follows: “Where under this order Judgment has been entered or the suit has been dismissed, the court, on application may ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 6 of

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set aside or vary the Judgment or order on such terms as may be just.” 13. The said Order 12 deals with “Hearing and consequence of non-attendance.” Order 50 Rule 6 of the same Rules grants the court power to enlarge time. This suit did not proceed to the stage of hearing. The record shows that the Plaintiffs filed this suit together with their documents and witness statements on 10th October 2016. They also filed a Notice of Motion dated 4th May 2017 seeking injunctive orders to restrain the Defendant from trespassing, fencing or carrying out any developments on the land in dispute. However, the suit was not processed for hearing and neither was the motion prosecuted. Therefore, order 12 of the Civil Procedure Rules does not aid the Plaintiffs. 14. However, on 5th February 2021 the Plaintiffs’ Counsel JOSEPH C. K CHEPTARUS was served with a Notice issued pursuant to Order 17 Rule 2 of the Civil Procedure Rules. The Notice was clear that the suit was listed for dismissal for want of prosecution on 17 th ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 7 of

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February 2021. It is duly stamped and signed by the said firm of Advocates upon receipt. It cannot therefore be correct for the 2nd Plaintiff to aver, as he has done in paragraph 6 of his supporting affidavit; 6: “That we were not aware of the listing of this suit/matter for Notice to show cause on 17/2/2021 and/or or counsel/Advocate was not even aware of that notice for there was no notice and other evidence in the office file to that effect.” 15. If the Plaintiffs’ counsel was not served with the notice of dismissal dated 3rd February 2021, nothing would have been easier than filing an affidavit to that effect. That has not been done. I have not heard the Plaintiff nor Counsel deny the fact that the stamp and signature on the Notice to show cause dated 3rd February 2021 is actually from their office. The record shows further that though duly served with the Notice to show cause, the Plaintiffs who were the initiators of ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 8 of

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the suit did not attend the court and neither did their Counsel. ODENY J therefore dismissed the suit for want of prosecution pursuant to the provisions of Order 17 Rule 2 of the Civil Procedure Rules. It reads; “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 should not be dismissed, and if cause is not shown to its satisfaction may dismiss the suit.” Emphasis mine. 16. The use of the word “may give notice”, in my view, does not denote service of any notice to the parties. Posting the notice on the cause list will suffice for purposes of article 17 Rule 2(1) of the Civil Procedure Rules. 17. The Plaintiffs are seeking the court to exercise its discretionary powers. They must do so with clean ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 9 of

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hands. As is already now clear, the Plaintiffs have, however, been dishonest in denying service of the Notice upon their Counsel when there is irrefutable evidence that the said Notice was served upon Counsel a whole 12 days before the suit was dismissed on 17th February 2021. 18. The basis for dismissal of a suit for want of prosecution is the requirement of expediency in the prosecution of civil cases. It is common knowledge that Article 159(2)(a) of the Constitution requires that Justice shall not be delayed. Equally, Section 3A of the Civil Procedure Act grants the court powers to make such orders as may be necessary for the ends of Justice or to prevent any abuse of its process. By the time this suit was dismissed on 17th February, 2021. It had been in this Court’s registry for over 4 years with no explanation. Having moved to this court seeking remedies against the Defendant, it was the duty of the Plaintiffs to ensure that their suit is prosecuted. And it was also the responsibility of the court to invoke the law and dismiss cases where the parties are not interested in pursuing justice. In the case of ET ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 10 of

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MONKS & COMPANY LTD V. EVANS & OTHERS 1974 KEHC 2 KLR, the court made it clear that public policy now demands that the business of the court must be conducted with expedition. 19. In the case of IVITA V. KYUMBA 1984 KLR 441 it was stated thus; “The test applied by 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 Plaintiff’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 at the court” Emphasis mine. ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 11 of

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20. In that case, the court was dealing with a situation where the defendant had sought the dismissal of the suit. In this case, the court moved on its’s own motion to dismiss a suit where the Defendant had gone to sleep. In this case, as is already clear the plaintiffs have been dishonest in denying service upon their counsel. The explanation is not excusable. And having been given an opportunity to show cause why their suit should not be dismissed, the Plaintiff and their counsel did not turn up. Equity aids the vigilant. Not the indolent. 21. The Plaintiffs also seek an order that they be allowed to make a formal request for Judgment to be entered in their favour in default of appearance and a defence. As matters stand now, their suit was dismissed over 4 years ago. Therefore, there is no pending suit upon which any default judgment can be entered. 22. This court will go further and cite the provisions of Order 17 Rule 5 of the Civil Procedure Rules. It reads; ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 12 of

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“A suit stand dismissed after two years where no step has been undertaken”. 23. This suit having been filed on 10th October 2016, it stood dismissed on 11th October 2018 by effluxion of time. The court did not even need to issue any Notices for its dismissal. Therefore, the arguments by the Plaintiffs that no notice had been issued for the dismissal of their suit does not aid them. Their suit died by operation of the law on 11th October 2018. And even if this court was minded, for any reason, to exercise its discretion in favour of the Plaintiffs, there are really no good grounds upon which such discretion can be exercised. It is trite law that the exercise of discretion must be done judicially, on sound reasons but not with caprice or whimsically. Given the circumstances of this case, I see no reasons why I should exercise my discretion in favour of the Plaintiffs. 24. Ultimately therefore, and having considered the Notice of Motion dated 3rd May 2024, this court makes the following dispositive orders: ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 13 of

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78760 1.The Motion is devoid of merits. It is dismissed. 2.Cost to the Defendant. BOAZ N. OLAO JUDGE 17TH SEPTEMBER 2026 Ruling dated, signed and delivered on this 17 th day of September 2026 with notice to the parties. BOAZ N. OLAO JUDGE 17TH SEPTEMBER 2026 ITEN ELCLC. NO. E019 OF 2025 (RULING) 13 Page 14 of

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