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ELCAllowedNot stated on the face of the ruling (Originating Summons filed 27/11/1987, transferred to ELC Bungoma)

Anthony K. Sabuni & 4 others v Joseph Wanjala Fulafu & another [2018] KEELC 4325 (KLR)

Environment and Land Court
22 February 2018
SMS. Mukunya
1,214 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a 30-year-old land case because the plaintiffs could not explain why they never pushed it to hearing.

What this practically means

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Executive summary

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The defendant/respondent in an Originating Summons for adverse possession filed in 1987 moved the Environment and Land Court at Bungoma by notice of motion under Order 17 rule 2(3) and Order 51 rule 1 of the Civil Procedure Rules 2010 and Sections 3A, 1A and 1B of the Civil Procedure Act, seeking dismissal of the suit for want of prosecution. It was the third such application; two earlier ones (a chamber summons of 30/6/1989 and a notice of motion of 11/11/1991) were each withdrawn by consent. In response, the second plaintiff alleged the file had been orally transferred from Kakamega to Bungoma, went missing, and that the registries failed to communicate with his advocates. Mukunya J traced the court file and found the plaintiffs' account to be 'pure falsehood': the file was never missing from Kakamega, was actively listed before Osiemo, Anzangalala and Tanui JJ between 1992 and 1998, and was transferred to Bungoma ELC by Sitati J on 12/10/2017 only after the present application was filed. The plaintiffs had retained the same advocates throughout over 30 years without fixing the suit for hearing. Holding the delay inordinate and inexcusable, the court allowed the application, dismissed the suit for want of prosecution, and awarded costs and interests to the defendant/respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit should be dismissed for want of prosecution
  2. 2.What the real and true facts are regarding the delay in prosecution of the suit

Key legal issues

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01

Whether the inordinate delay of over 30 years justified dismissal for want of prosecution

Holding

The delay was inordinate, inexcusable and unexplained; the suit was dismissed for want of prosecution.

Reasoning

The court traced the file history from filing in 1987 and found it was never missing from the Kakamega registry, contradicting the plaintiffs' affidavit. The plaintiffs had retained the same advocates throughout and did nothing despite two earlier dismissal applications compromised by consent. The court found the claim that the file was orally transferred to Bungoma to be fabricated falsehoods, leaving no justifiable reason to keep the case pending.

p. 2

Legal principles established

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  • A suit pending for over 30 years without justifiable reason for the delay may be dismissed for want of prosecution, particularly where the plaintiff fabricates explanations.

Court orders

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  1. 1.The application dated 13/7/2017 is allowed as prayed
  2. 2.The suit is dismissed for want of prosecution
  3. 3.Costs and interests to the defendant/respondents in the Originating Summons

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SM
majority

Wrote the judgment

Jurisdiction invoked
Order 17 rule 2(3) and Order 51 rule 1 of the Civil Procedure Rules 2010; Sections 3A, 1A and 1B of the Civil Procedure Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I agree with the applicant that the delay herein is inordinately too long and inexcusable. There cannot be any justifiable reason to keep this case in court.
p. 2Dismissal for want of prosecution - inordinate delay
This application has merit the same is allowed as prayed. This suit is therefore dismissed for want of prosecution with costs and interests to the defendant respondents in the Originating Summons. It is so ordered.
p. 3Final orders

Issues in the judgment

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minor

Internal inconsistency in filing dates: the judgment variously refers to the Originating Summons as filed on 27/11/87, 25th November 1987 and 'sometime in 1987'.

minor

The second plaintiff's affidavit is described as both a replying affidavit by the 'applicant respondent' and an affidavit of the plaintiffs, with inconsistent characterisation of the parties' roles.

minor

The judgment states the plaintiff alleged the suit 'was last in Court in 1982' although the suit was filed in 1987 and the record shows it was last in court on 19/2/1992.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anthony K. Sabuni & 4 others v Joseph Wanjala Fulafu & another [2018] KEELC 4325 (KLR)", Case Analysis (2018). Not stated on the face of the ruling (Originating Summons filed 27/11/1987, transferred to ELC Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4325/eng@2018-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.