Felista Njeri & 2 others v Patrick Kaniaru Igiria & 2 others [2019] KEELC 69 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MILIMANI LAW COURTS

ELC NO. 1100 OF 2016

FELISTA NJERI & 2 OTHERS....................................................................PLAINTIFF

=VERSUS=

PATRICK KANIARU IGIRIA & 2 OTHERS..........................................DEFENDANT

RULING

1. The Defendants/Applicants filed a Notice of Motion dated 21st August 2018 in which they sought to have the Plaintiffs/Respondents suit dismissed for want of prosecution. The Applicants contend that the Respondents have not taken any step for over a year from 3rd August 2017 with a view to prosecuting their suit and as such, they have lost interest in the suit which should be dismissed.

2. The Respondents did not file any grounds of opposition or replying affidavit despite being given time to do so. When the application came up for hearing, the Respondents advocate was not in court. The application therefore proceeded ex-parte. The only issue for determination is whether there has been inordinate delay in prosecuting this suit as to have the same dismissed.

3. The suit herein was filed on 9th September 2016. The Respondents contemporaneously filed an application for injunction. The application for injunction was dismissed on 31st July 2017. Since then until 17th  September 2018 when this application was filed, the Respondents had not taken any step to have the case prosecuted. The Respondents have never been bothered to have summons issued and served. The injunction which was dismissed was the main prayer in the plaint.

4. In the case of Ivita Vs Kyumbu (1984) KLR at page 442, Justice Chesoni (as he then was) aptly put the test to be applied in considering whether to dismiss a suit for want of prosecution or not as follows:-

“The test applied by the Courts in an 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 available time. It is a matter in the discretion of the Court”.

5. The Respondents were granted an opportunity to explain the delay by filing an affidavit in reply on 28th February 2019. Again on 15th May 2019, the Respondents were given another chance but they did not do so. When the application came up for hearing, the Respondents advocate did not appear. As matters stand, there is no explanation given for the delay in prosecuting this case. I find that this is a perfect case where the Respondents have lost interest in their own case. I therefore allow the application by the Applicants and proceed to dismiss this suit for want of prosecution with costs to the applicants.

It is so ordered.

Dated, Signed and delivered at Nairobi on this 7thday of November 2019.

E.O.OBAGA

JUDGE

In the absence of;-

In the absence of parties who were aware of the date and time for delivery of Ruling.

Court Assistant: Hilda

E.O.OBAGA

JUDGE