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Introduction and Background
1. The 1st and 2nd Defendants, through their Notice of Motion dated 13th January, 2025, and made under Sections 1A,1B & 3A of the Civil Procedure Act(Chapter 21 of the Laws of Kenya) and Order 17, rule 2 of the Civil Procedure Rules, seek to have this suit against them dismissed for want of prosecution. The application is supported by the affidavit of Samuel Njuguna, the 1st Defendant’s Legal Counsel-Recoveries, sworn on 13th January, 2025. It is also supported by the 3rd Defendant through his replying affidavit sworn on 4th February, 2025. The Plaintiff opposes the application through his replying affidavit sworn on 13th March, 2025.
2. In addition to their pleadings, the parties have also relied on their written submissions that I have considered, and I will be making relevant references to the same in my analysis and determination below.
Analysis and Determination
3. The parties agree that an application seeking dismissal of a suit for want of prosecution is grounded under Order 17, rule 2 of the Rules as follows: -
2. Notice to show cause why suit should not be dismissed [Order 17, rule 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.
(5) A suit stands dismissed after two years where no step has been undertaken.
(6) A party may apply to court after dismissal of a suit under this Order. (Emphasis mine)
4. From the above provision, it can be deduced that the court has discretionary power to dismiss a suit for want of prosecution. The Court of Appeal in Moses Muriira Maingi & 2 others v Maingi Kamuru & another [2013] KECA 234 (KLR) adopted and endorsed the test for dismissing a matter for want of prosecution as set out by Chesoni J.,(as he was then) in Ivita v Kyumbu [1975] KEHC 4 (KLR) as follows: -
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.” (Emphasis mine)
5. The Defendants state that the Plaintiff has not taken any steps to move the case forward for over one year and this delay is described as inordinate, unreasonable, and inexcusable. They argue that it is apparent that the Plaintiff is not keen on pursuing the matter which is causing them unwarranted anxiety. The Defendants depone that the Plaintiff''s previous Counsel applied to cease acting for him, and the court allowed this on 15th November 2023 and that since that date the Plaintiff has taken no further action to prosecute the case.
6. In response, the Plaintiff admit the delay but then state that this was not deliberate but was caused by circumstances beyond his control, specifically, a breakdown in his relationship with his previous Advocates, who ceased acting for him in November 2023, and that there was difficulty in retrieving the case file from the said Advocates due to an alleged dispute over outstanding legal fees. He states that the file was only released to him on 12th March, 2025, after settling some fees and that he has now engaged new Advocates, M/s Kiarie Mungai & Associates, to represent him.
7. The Plaintiff affirms that he is still keen and desirous to prosecute the case to its logical conclusion and he has been advised by his new Advocates that the suit raises triable issues with a high chance of success. He pleads for the case to be heard on its substantive merits rather than being dismissed on a technicality stating that the Defendants will not suffer any prejudice if the application is dismissed and he is given time to proceed. In contrast, the Plaintiff states he will suffer great prejudice and be driven from the seat of justice if the case is dismissed, as the Defendants would then benefit from their alleged "illegal acts."
8. Having considered the rival submissions, I am not persuaded by the Plaintiff’s explanation that the delay in prosecuting the suit arose from difficulty in obtaining the subject file from his previous Advocates. No evidence was tendered to corroborate that statement. Further not evidence was tendered to show that he made any efforts either by himself, or his current Advocates to remedy the delay and prosecute the suit.
9. This Court has on several occasions held the beyond mere statements, a party seeking relief ought to provide some evidence of correspondence showing that it has made efforts to prosecute its case. Bare statements alone are insufficient. (see Richand Velji Shah & 3 others v Viktar Maina Ngunjiri [2014] KEELC 600 (KLR) and Vision Housing Co-operative Limited v Wairimu Kinyanjui & another [2018] KEHC 509 (KLR)].
10. Further, Majanja J., held in Surya Holdings Limited & 4 others v ICICI Bank Limited & another [2023] KEHC 22173 (KLR), even if the Advocates did not make such effort, the duty was on the Plaintiff as the party, to make efforts to see that the suit is prosecuted. It is now established that parties have a duty to prosecute their suit and cannot blame their Advocates if they sit back and wait for the Advocates to prosecute the suit themselves. It is trite that a case belongs to a litigant and not to their Advocate. A litigant has a duty to pursue the prosecution of his or her case and the court cannot set aside dismissal of a suit on the sole ground of a mistake by Counsel of the said litigant.
11. On who stands to suffer prejudice from the delay, the answer can only be the Defendants. This suit was filed in August 2020, and relates to a property that was sold at a public auction to the 3rd Defendant at that time. The Plaintiff''s initial attempts to secure injunctive relief were dismissed by both this court and the Court of Appeal, which found the sale process proper and the property already transferred. The suit now essentially hangs over the heads of the Defendants as a claim for damages. The continued pendency of this suit, stalled by the Plaintiff''s inaction and indolence, subjects the Defendants to ongoing and unwarranted anxiety, legal uncertainty, and the threat of a stale claim which constitutes serious prejudice.
12. The Plaintiff''s plea that his case is meritorious and should be heard on its merits, while noted, cannot override the imperative of timely justice and the prejudice caused to the opposing party by an unexplained and prolonged delay. The objective of the Civil Procedure Act, as encapsulated in Sections 1A and 1B, is to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Allowing this suit to remain in limbo contravenes these overriding objectives.
Conclusion and Disposition
13. In conclusion, I find that the Plaintiff has failed to offer a satisfactory explanation for the inordinate delay in prosecuting this suit. I further find that the Defendants will be prejudiced if the suit continues to be delayed in court.
14. Consequently, the application dated 13th January, 2025, is merited and is hereby allowed. The suit is dismissed for want of prosecution with costs of the application and the suit being borne by the Plaintiff.
Dated and delivered virtually via Microsoft Teams this 27 day of November, 2025
ALEEM VISRAM, FCIArb
JUDGE
In the presence of;
Court Assistant: Ivan
………………..……………..............................................................for the Plaintiff
…………………………………………………………….……for the 1st Defendant
………………………………………....................................…for the 2nd Defendant
…………………………………………………………..……..for the 3rd Defendant
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Introduction and Background
1. The 1st and 2nd Defendants, through their Notice of Motion dated 13th January, 2025, and made under Sections 1A,1B & 3A of the Civil Procedure Act(Chapter 21 of the Laws of Kenya) and Order 17, rule 2 of the Civil Procedure Rules, seek to have this suit against them dismissed for want of prosecution. The application is supported by the affidavit of Samuel Njuguna, the 1st Defendant’s Legal Counsel-Recoveries, sworn on 13th January, 2025. It is also supported by the 3rd Defendant through his replying affidavit sworn on 4th February, 2025. The Plaintiff opposes the application through his replying affidavit sworn on 13th March, 2025.
2. In addition to their pleadings, the parties have also relied on their written submissions that I have considered, and I will be making relevant references to the same in my analysis and determination below.
Analysis and Determination
3. The parties agree that an application seeking dismissal of a suit for want of prosecution is grounded under Order 17, rule 2 of the Rules as follows: -
2. Notice to show cause why suit should not be dismissed [Order 17, rule 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.
(5) A suit stands dismissed after two years where no step has been undertaken.
(6) A party may apply to court after dismissal of a suit under this Order. (Emphasis mine)
4. From the above provision, it can be deduced that the court has discretionary power to dismiss a suit for want of prosecution. The Court of Appeal in Moses Muriira Maingi & 2 others v Maingi Kamuru & another [2013] KECA 234 (KLR) adopted and endorsed the test for dismissing a matter for want of prosecution as set out by Chesoni J.,(as he was then) in Ivita v Kyumbu [1975] KEHC 4 (KLR) as follows: -
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.” (Emphasis mine)
5. The Defendants state that the Plaintiff has not taken any steps to move the case forward for over one year and this delay is described as inordinate, unreasonable, and inexcusable. They argue that it is apparent that the Plaintiff is not keen on pursuing the matter which is causing them unwarranted anxiety. The Defendants depone that the Plaintiff''s previous Counsel applied to cease acting for him, and the court allowed this on 15th November 2023 and that since that date the Plaintiff has taken no further action to prosecute the case.
6. In response, the Plaintiff admit the delay but then state that this was not deliberate but was caused by circumstances beyond his control, specifically, a breakdown in his relationship with his previous Advocates, who ceased acting for him in November 2023, and that there was difficulty in retrieving the case file from the said Advocates due to an alleged dispute over outstanding legal fees. He states that the file was only released to him on 12th March, 2025, after settling some fees and that he has now engaged new Advocates, M/s Kiarie Mungai & Associates, to represent him.
7. The Plaintiff affirms that he is still keen and desirous to prosecute the case to its logical conclusion and he has been advised by his new Advocates that the suit raises triable issues with a high chance of success. He pleads for the case to be heard on its substantive merits rather than being dismissed on a technicality stating that the Defendants will not suffer any prejudice if the application is dismissed and he is given time to proceed. In contrast, the Plaintiff states he will suffer great prejudice and be driven from the seat of justice if the case is dismissed, as the Defendants would then benefit from their alleged "illegal acts."
8. Having considered the rival submissions, I am not persuaded by the Plaintiff’s explanation that the delay in prosecuting the suit arose from difficulty in obtaining the subject file from his previous Advocates. No evidence was tendered to corroborate that statement. Further not evidence was tendered to show that he made any efforts either by himself, or his current Advocates to remedy the delay and prosecute the suit.
9. This Court has on several occasions held the beyond mere statements, a party seeking relief ought to provide some evidence of correspondence showing that it has made efforts to prosecute its case. Bare statements alone are insufficient. (see Richand Velji Shah & 3 others v Viktar Maina Ngunjiri [2014] KEELC 600 (KLR) and Vision Housing Co-operative Limited v Wairimu Kinyanjui & another [2018] KEHC 509 (KLR)].
10. Further, Majanja J., held in Surya Holdings Limited & 4 others v ICICI Bank Limited & another [2023] KEHC 22173 (KLR), even if the Advocates did not make such effort, the duty was on the Plaintiff as the party, to make efforts to see that the suit is prosecuted. It is now established that parties have a duty to prosecute their suit and cannot blame their Advocates if they sit back and wait for the Advocates to prosecute the suit themselves. It is trite that a case belongs to a litigant and not to their Advocate. A litigant has a duty to pursue the prosecution of his or her case and the court cannot set aside dismissal of a suit on the sole ground of a mistake by Counsel of the said litigant.
11. On who stands to suffer prejudice from the delay, the answer can only be the Defendants. This suit was filed in August 2020, and relates to a property that was sold at a public auction to the 3rd Defendant at that time. The Plaintiff''s initial attempts to secure injunctive relief were dismissed by both this court and the Court of Appeal, which found the sale process proper and the property already transferred. The suit now essentially hangs over the heads of the Defendants as a claim for damages. The continued pendency of this suit, stalled by the Plaintiff''s inaction and indolence, subjects the Defendants to ongoing and unwarranted anxiety, legal uncertainty, and the threat of a stale claim which constitutes serious prejudice.
12. The Plaintiff''s plea that his case is meritorious and should be heard on its merits, while noted, cannot override the imperative of timely justice and the prejudice caused to the opposing party by an unexplained and prolonged delay. The objective of the Civil Procedure Act, as encapsulated in Sections 1A and 1B, is to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Allowing this suit to remain in limbo contravenes these overriding objectives.
Conclusion and Disposition
13. In conclusion, I find that the Plaintiff has failed to offer a satisfactory explanation for the inordinate delay in prosecuting this suit. I further find that the Defendants will be prejudiced if the suit continues to be delayed in court.
14. Consequently, the application dated 13th January, 2025, is merited and is hereby allowed. The suit is dismissed for want of prosecution with costs of the application and the suit being borne by the Plaintiff.
Dated and delivered virtually via Microsoft Teams this 27 day of November, 2025
ALEEM VISRAM, FCIArb
JUDGE
In the presence of;
Court Assistant: Ivan
………………..……………..............................................................for the Plaintiff
…………………………………………………………….……for the 1st Defendant
………………………………………....................................…for the 2nd Defendant
…………………………………………………………..……..for the 3rd Defendant
'