Mark Joseph Simiyu Kisembe, Samuel Oduori Chuma & Michael Francis Chemonges Kitiyo v Michael Kimtai, Edward Wekesa Situma, Lena Naliaka Muliro, Mathew Pierre Ngichabbe Sisenda, County Land Registrar Trans-Nzoia County, Chief Land Registrar & Attorney General [2016] KEELC 526 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LADN COURT

AT KITALE

LAND CASE NO. 140 OF 2013

MARK JOSEPH SIMIYU KISEMBE......................................1ST PLAINTIFF

SAMUEL ODUORI CHUMA...................................................2ND PLAINTIFF

MICHAEL FRANCIS CHEMONGES KITIYO.......................3RD PLAINTIFF

VERSUS

MICHAEL KIMTAI................................................................1ST DEFENDANT

EDWARD WEKESA SITUMA............................................2ND DEFENDANT

LENA NALIAKA MULIRO..................................................3RD DEFENDANT

MATHEW PIERRE NGICHABBE SISENDA....................4TH DEFENDANT

THE COUNTY LAND REGISTRAR

TRANS-NZOIA COUNTY...................................................5TH DEFENDANT

THE CHIEF LAND REGISTRAR........................................6TH DEFENDANT

THE ATTORNEY GENERAL...............................................7TH DEFENDANT

R U L I N G

1. The first and second defendants/applicants brought a notice of motion dated 22/6/2016 in which they seek orders that the plaintiffs’ suit be dismissed with costs for want of prosecution.  The applicants contend that this case was last in court on 7/5/2015 and since then, the plaintiffs have not taken any step towards the prosecution of the same.

2. The applicants contend that the plaintiffs/respondents obtained an injunction ex-parte which injunction was subsequently confirmed and that this is why the plaintiffs are not in hurry to prosecute their application as they are enjoying injunctive orders.

3. The applicants application is opposed based on two replying affidavits filed in court on 1/7/2016 and 18/7/2016.  The respondents contend that the applicants application is premature in that pleadings have not closed.  The plaintiff/respondent in ELC No. 136 of 2013 contends that this suit could not be set down for hearing as there was no compliance with the court’s order of 18/9/2014.

4. I have carefully gone through the applicants application as well as the opposition to the same by the plaintiffs/respondents.  The applicants application is brought under the provisions of Order 17 Rule 2 (1) and (4) of the Civil Procedure Rules.

Order 17 Rule 2(1) states 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”.

Rule 4 states as follows:-

“Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith”.

5. It is clear that a party who wishes to have a suit dismissed for want of prosecution can do so by invoking the provisions of Order 17 Rule (3) which refers to Rule 2(1).In the instant case, the applicants are contending that the matter was last in court on 7/5/2015 and that no step has been taken since then. The record of proceedings in the file however shows the contrary. The matter was in court on 7/5/2015 when the plaintiffs were granted time to file an application for amendment of the plaint. The record shows that a notice of motion dated 29/4/2015 was filed in court on 25/5/2016 and was allowed by consent dated 11/5/2015 and filed in court on 25/5/2016.

6. The application allowed joinder of other parties including the County Land Registrar Trans-Nzoia, the Chief Land Registrar and the Attorney General. The record further shows that the Attorney General filed memorandum of appearance on 11/8/2015. The current application was filed on 22/6/2016.  A case can only be dismissed if there is no application made or step taken by either party for one year.  The filing of an application to join other parties was a step taken towards the prosecution of the case.  The filing of a memorandum of appearance by the Attorney General on 11/8/2015 was another step taken towards the prosecution of the case.

7. A simple calculation of months from 11/8/2015 to 22/6/2016 shows that the period of one year had not elapsed. It is therefore clear that the applicants’ application for dismissal of this case is premature.  The plaintiffs are not enjoying any orders of injunction as alleged. The plaintiffs were granted ex-parte orders of injunction on 28/10/2013. The orders were extended once on 11/11/2013.  Those orders were never extended or confirmed as alleged.  It is the present applicants who brought an application for injunction and were given ex-parte orders on 18/2/2014.  The application was heard inter-partes on 5/3/2014. The application by the present applicants was dismissed vide ruling of 30/4/2014 and the injunctive orders which had been given discharged.

8. The plaintiff/respondent in the ELC No. 136 of 2013 alleged that the suit has not been set down for hearing because there was no compliance with the court’s order of 18/9/2014.  This is not true. The court’s order of 18/9/2014 was fully complied with in that the surveyor was present in court on 30/9/2014 as directed and he went and surveyed the disputed plots as per consent order recorded on 30/9/2014.  He filed a report in time.  It is the plaintiffs who disputed the report and sought an independent one which was subsequently prepared.  This is the report which prompted the plaintiffs to enjoin other parties. There was no time limit given by the court for parties to adduce evidence.  There was therefore no need for the applicants to ask the court to deal with the case under Rule 4 of Order 17 of Civil Procedure Rules.

9. It is clear that the plaintiffs are not keen on proceeding with this case. Were it not for the fact that this application was made prematurely, I would have allowed it.  But as the same is premature, I proceed to dismiss it with costs to the respondents. To ensure that the case proceeds to hearing expeditiously, I direct that the parties fully comply with Order 11 of the Civil Procedure Rules and set a hearing date for this case within the next three months.  For avoidance of doubt, the period of 3 months is for taking a hearing date and not for the hearing of the case itself.

It is so ordered.

Dated, signed and delivered at Kitale on this 19th day of September, 2016.

E. OBAGA

JUDGE

In the presence of Mr. Ingosi for Respondents.

Court Assistant - Isabellah.

E. OBAGA

JUDGE

19/9/2016