Letting v Letting (Civil Case 12 of 2021) [2026] KEHC 2936 (KLR) (5 March 2026) (Ruling) Neutral citation: [2026] KEHC 2936 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KAPSABET CIVIL CASE 12 OF 2021 JR KARANJA, J MARCH 5, 2026 BETWEEN MARGY CHEPKOSGEI LETTING .......................................................... PLAINTIFF AND WILFRED KIRWA LETTING .............................................................. DEFENDANT RULING 1. Basically, the Notice of Motion by the Defendant/ Applicant dated 1st April 2025, seeks the main order that this suit be dismissed for want of prosecution. On the basis of the grounds set out in the motion supported by the averments contained in the supporting affidavit/ deposed on 13th November 2024 by counsel for the Applicant, Ms. Rachel Moraa. The Respondent/ Plaintiff filed a replying affidavit dated 24th September 2025, in opposition to the application. 2. Order 17 Rules [1][3], Order 2 Rule [15] of the Civil Procedure Rules and Section 3A of the Civil Procedure Act provided the foundation for the application Order 17 Rule 3 Civil Procedure Rule is of significant importance and provides that: “ Where on any day to which the hearing of the suit is adjourned, the parties or an of them fail to appear, the court may proceed to dispose of the suit in order of the modes directed in that behalf by Order 12, or make, such other order as it thinks fit.” And, Rule 3[1] of order 12 provides that: “ If one that day fixed for hearing, after the suit has been called for hearing outside the court, only the defendant attends and he admits nor part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2936/eng@2026-03-05 1
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3. It is the Applicant’s contention that this suit was filed on 17th August 2016 and close to nine [9] years since that the file has never moved to prosecution it despite several notification to her. Further to the foregoing and as an alternative, the Applicant contends that the Plaintiff’s suit discloses no reasonable cause of action against the Defendant. In her rejoinder, the Plaintiff/ Respondent contends that she is willing and energetic enough to proceed and prosecute her case to the end. She attribute the delay in the prosecution of her case to the failure by her ………. Advocate to provide her with accurate and correct communication on the status of her case whose subject matter is property she considers to be matrimonial properly part of which is occupied by a third party. 4. The record shows that this case was filed in court on 17th August 2016 for orders “interalia” to compel the Defendant/Applicant to allow the Plaintiff/Respondent access her matrimonial home standing on the parcel of land described as Nandi/Kipsigak/158. The Defendant/Applicant is said to be husband or spouse to the Plaintiff, but denied the allegation in his statement of defence and contended that he is married to one wife called Emmy Letting with whom they own the aforementioned parcel of land on which stands that matrimonial home. Whether or not there exists a marriage relationship between the Applicant and the Defendant is a matter raising valid triable issues which may only be resolved by a complete and full hearing of this case which in the circumstance, cannot be said to be frivolous, vexatious and an abuse of the court process to warrant its summary dismissal. 5. Evidently, since the closure of the pleadings and the determination of an interlocutory application the Plaintiff/ Respondent has been rather slow in prosecution her case to its logical conclusion. She blames her previous advocate for the delay but fails to demonstrate how the advocate is to blame. Nonetheless, failure by an advocate not to expeditiously in prosecuting a matter could offer prosecution of this matter. 6. Consequently and while giving the Plaintiff/ Respondent the benefit of doubt for the delay in the prosecution of this case it would be in the interest of justice that the present application be disallowed and the Plaintiff be given at opportunity to be heard in order that her case against the Defendant/ Applicant be determined on the merits. The application is accordingly dismissed with each party bearing their own costs and on condition that the Plaintiff do ensure that her case is prosecuted and concluded within the next for [4] months from this date hereof. In default, the case, shall stand dismissed for want of prosecution, with costs to the Defendant. Ordered accordingly. DATED AND DELIVERED THIS 5TH DAY OF MARCH 2026 J. R. KARANJAH, JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2936/eng@2026-03-05 2
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