Esther Wangechi Mwaniki v J. Warui Mwaniki & 36 Others [2019] KEELC 2455 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA

ELC CASE NO. 73 OF 2015

ESTHER WANGECHI MWANIKI...................................................APPLICANT

VERSUS

J. WARUI MWANIKI & 36 OTHERS.......................................RESPONDENTS

RULING

The applicant who is also the 2nd defendant in this case filed a Notice of Motion dated 11th September 2018 seeking to have this suit dismissed for want of prosecution.  The application is brought under Order 17 Rule 2 (1) C.P.R.  In support of that application, the applicant filed an affidavit in which he stated that after he was sued in this case with 36 others on 14th October 2015, the plaintiff moved the Court to serve some of the defendants by way of substituted service which application was allowed on 30th November 2016.  Since then, the plaintiff has not fixed this matter for hearing. The applicant also deponed that before instituting this suit, he had filed another suit against the plaintiff and his son for encroaching his land parcel No. Mwea/Tebere/B/2697 and 2698. On 16th November, the plaintiff filed an application to stay proceedings in the other suit he had filed in Wanguru Law Courts which was allowed.  Since then, the plaintiff has not taken any steps to prosecute this case which has adversely denied him accessing justice in the case filed in Wanguru Law Courts.  The application is supported by the 7th, 8th and 11 defendants through a replying affidavit sworn by Michael Kinyua Kimaru sworn on 11th December 2018.

The plaintiff through a replying affidavit sworn on 29th October 2018 opposed the applicant’s application stating that he has not been able to serve all the respondents since the suit land is a family property measuring over 35 acres and that his brother who is the 1st respondent sub-divided the same to over 50 plots and transferred them to third parties some of who do not live on the land.  The plaintiff/respondent also deponed that he has so far spent a colossal sum of money trying to trace the respondents through the services of a process server and so far he has managed to serve 24 respondents leaving 21 respondents which he sought leave to serve by substituted service by affixing pleadings on the Court’s Notice Board but the Court directed that they be served by advertisement through the Daily Newspapers.  The plaintiff also stated that he is unable to raise the charges required to effect service of Court process through the Daily Newspapers since he is blind and old hence unable to raise the required money.  The applicant also stated that he has not been able to take a lot of action since he has been sick and has been attending medication. He attached a medical report from Winnellis Medicare Ltd dated 19th October 2018.  He stated that he is interested in prosecuting this case and is even ready and willing to meet any conditions this Honourable Court may impose including payment of costs.

I have considered the application and the affidavit evidence, both in support and in opposition to the application.  I have equally considered the submissions by the firm of Wangechi Munene for the applicant and the firm of G.O. Ombachi & Co. Advocates on one hand and the rival submissions by the firm of Ann Thungu & Co. Advocates on the other.  The principle guiding the dismissal of suits for want of prosecution under Order 17 Rule 2 (1) CPR is to ensure that litigants prosecute their cases after filing.  It ensures that cases are heard and determined within the shortest time possible once they are filed in Court.  In this case, the plaintiff filed the suit herein on 15th June 2015.  Since then, very little has taken place towards the prosecution of the case.   The plaintiff has given some explanation for his inaction stating that he has not been able to trace some of the defendants for purposes of effecting summons to enter appearance and other Court processes. The plaintiff/respondent also attributed some of the inactions to his poor health and blindness.  In my view, a litigant seeking dismissal of a suit for want of prosecution must satisfy the Court that the case has been dormant for one year without any action.  The applicant must also demonstrate that there was inordinate and inexcusable delay in the circumstance of the case.   The applicant also needs to show that he will be prejudiced by the delay if the suit were to be allowed to proceed to trial.  Lastly, the applicant must satisfy the Court that a fair trial cannot be achieved due to the delay.  In the case of Ivita Vs Kyumbu, the Court held as follows:

“(the defendant) must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the Court will exercise its discretion in his favour and dismiss the action for want of prosecution”.

It was also held in Nilesh Premchand Mulji Shah & another t/a Ketan Emporium Vs M.D Popat & others (2016) e K.L.R as follows:

“Nonetheless, Article 159 of the Constitution and Order 11 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 heard 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 Kyumbu (1984) K.L.R 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 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 of the Court”.

Having considered the explanation given for the delay and the arguments presented both in favour and against this application, I find and hold that the delay in prosecuting this case for one year has been explained and that the same in my view is inordinate and excusable.  I also find that such delay can be compensated by way of costs.

Consequently, the application dated 11th September 2018 is disallowed.  However, the following directions are given:

(1)  The plaintiff to take a hearing date of the application dated 29th January 2019 forthwith.

(2)  The plaintiff to pay the costs of this application assessed at Ksh. 5,000/= within seven (7) days.

READ, DELIVERED and SIGNED in open Court at Kerugoya this 28th day of June, 2019.

E.C. CHERONO

ELC JUDGE

28TH JUNE, 2019

In the presence of:

1. M/S Githaiga holding brief for Ms Wangechi Munene

2. Ms Muthoni holding brief for Mr. Kahigah

3. Ms Ann Thungu for Plaintiff

4. Court clerk – Mbogo