Njiru Kabui v Kamburi Mubuta & 6 others [2017] KEELC 505 (KLR)
The bottom line
#The court refused to dismiss a stalled land case but gave the plaintiff three months to move it forward or lose it with costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit against the 2nd, 3rd and 4th defendants should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules
- 2.Whether the delay in prosecuting the suit was inexcusable and whether justice can still be done despite the delay
- 3.Whether the defendants demonstrated prejudice from the delay
Key legal issues
#Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2
The application for dismissal was refused, but conditional orders were imposed requiring the plaintiff to prosecute substitution within three months, failing which the suit stands dismissed with costs
The court accepted the defendants' submission that the plaintiff knew of the 1st defendant's death since 2012 when served with the defence and statements, making her claim to have learnt of it only in March 2016 less than candid. However, applying Ivita v Kyumbu, dismissal is discretionary and the defendants showed no prejudice. Justice delayed is contrary to Article 159(2)(b), so conditional orders balancing these considerations were made.
Whether the defendants demonstrated prejudice if the suit is not dismissed
They did not, which weighed against outright dismissal
Beyond pointing to the delay, the 2nd, 3rd and 4th defendants did not demonstrate what prejudice they would suffer if the suit proceeded. Under the Ivita v Kyumbu criteria, the defendant must satisfy the court that justice will not be done due to the prolonged delay before the discretion to dismiss is exercised in his favour. The absence of such proof meant outright dismissal was not warranted.
Legal principles established
#- The test for dismissal for want of prosecution is whether the delay is long and inexcusable and, if so, whether justice can still be done despite the delay
- Dismissal under Order 17 Rule 2 is discretionary, not mandatory
- A defendant seeking dismissal for want of prosecution must demonstrate prejudice from the delay
Court orders
#- 1.The Notice of Motion dated 19th May 2017 seeking the dismissal of the plaintiff's suit is dismissed
- 2.The plaintiff shall within three (3) months of the ruling file and prosecute an application to substitute the 1st defendant and fix a date for pre-trial before the Deputy Registrar
- 3.The plaintiff shall pay to the 2nd, 3rd and 4th defendants costs of the application assessed at Ksh. 10,000 within 30 days of the ruling
- 4.In default of any of the above, the suit shall stand dismissed with costs to the 2nd, 3rd and 4th defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 17 Rule 2 of the Civil Procedure Rules; Environment and Land Court Act, Section 3
Relief refused
#Dismissal of the suit against the 2nd, 3rd and 4th defendants for want of prosecution
Dismissal under Order 17 Rule 2 is discretionary; the defendants did not show prejudice, so conditional orders were made instead
Costs
Costs of the application assessed at Ksh. 10,000 payable by the plaintiff to the 2nd, 3rd and 4th defendants within 30 days; in default, the suit to stand dismissed with costs to the 2nd, 3rd and 4th defendants
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1. The Notice of Motion dated 19th May 2017 seeking the dismissal of the plaintiff's suit is dismissed.
4. In default of any of the above, this suit shall stand dismissed with costs to the 2nd, 3rd and 4th defendants.
in determining whether or not a suit should be dismissed for want of prosecution, the test is whether the delay is long and inexcusable and if it is, can justice be done despite the delay.
It is the duty of the plaintiff to pursue her case and thereby assist the Court in ensuring the expeditious disposal of cases which is an overriding objective of the Court
Issues in the judgment
#The judgment inconsistently dates the plaintiffs' letter inviting counsel for a mention - the plaintiff's affidavit refers to a mention on 16th October 2016 while the court's reasoning refers to 6th October 2016
The plaintiff's affidavit is described as a 'replying affidavit' in one passage and a 'supporting affidavit' in another
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njiru Kabui v Kamburi Mubuta & 6 others [2017] KEELC 505 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/505/eng@2017-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.