Flister Joyce Okaa v Zachariah Kuya Okata [2022] KEELC 974 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELCC No. 338 OF 2017

FLISTER JOYCE OKAA.................................PLAINTIFF

VERSUS

ZACHARIAH KUYA OKATA......................DEFENDANT

RULING

1. By Notice of Motion dated 17th September, 2021, the defendant seeks the following orders:

1. THAT this Honourable Court be pleased to dismiss the Plaintiff’s suit for want of prosecution.

2. THAT the costs of this application be provided for.

2. The application is supported by an affidavit sworn by the defendant/applicant. He deposed that the plaintiff instituted this suit on 26th September, 2017 and that he entered appearance and filed his response on 30th October, 2017. That the matter was last in court on 9th May 2019 when this court made a ruling staying proceedings in this matter pending judgment in Maseno PMCC No. 115 of 2014and that judgement in the said Maseno case was delivered on 2nd April, 2019.   That since then the plaintiff has not shown enthusiasm whatsoever to prosecute this suit. He therefore prayed that this suit be dismissed with costs for want of prosecution.

3. The plaintiff opposed the application through a replying affidavit wherein she deposed that judgment in the Maseno matter was delivered on 2nd April 2019 and being dissatisfied with the judgment the applicant lodged an appeal before the Environment and Land Court in Kisumu vide ELCA No. 37 of 2019. That the appeal after being heard was dismissed with costs on 3rd September, 2021 and that as she was preparing to fix this suit down for hearing, the applicant lodged the present application less than 15 days after dismissal of the appeal. He therefore prayed that the application be dismissed with costs.

4. The application was canvassed through written submissions which I have duly taken note of.  Parties generally reiterated the positions that they took in the application and replying affidavit.

5. I have considered the application, the affidavits and the submissions. Order 17 Rule 2 of the Civil Procedure Rules provides as follows:

2. (1) 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.

(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.

(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.

(4) The court may dismiss the suit for non-compliance with any direction given under this Order.

6. There is no dispute that this court delivered a ruling on 9th May 2019 in which it made an order ruling staying proceedings in this matter pending determination of Maseno PMCC No. 115 of 2014. It is further not in dispute that Maseno PMCC No. 115 of 2014 was determined on 2nd April 2019 and that the applicant appealed against the judgment vide Kisumu ELCA No. 37 of 2019, which was heard and later determined on 3rd September, 2021. As long as the appeal was pending, it cannot be said that the Maseno case had been concluded.

7. Thus, during the period between 9th May 2019 and 3rd September, 2021, the order of stay of proceedings was in force and the plaintiff cannot therefore be faulted for not prosecuting the suit. The present application was filed on 1st October, 2021, hardly a month after delivery of the judgment in Kisumu ELCA No. 37 of 2019 and a far cry from the one year specified under Order 17 Rule 2 of the Civil Procedure Rules. The matter was simply not ripe for dismissal for want of prosecution.

8. In view of the foregoing discourse, I find no merit in Notice of Motion dated 17th September, 2021. I dismiss it. Costs shall be in the cause.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 8TH DAY OF MARCH 2022.

D. O. OHUNGO

JUDGE

Delivered in open court in the presence of:

Ms Aligula holding brief for Ms Chebet for the plaintiff

No appearance for the defendant

Court Assistant: E. Juma