[2016] KEHC 2951 (KLR)
The court found that although there had been delay in prosecuting the suit, all parties had complied with Order 11 of the Civil Procedure Rules and the case was ready for hearing. The court determined that the substantive issues in the suit warranted a hearing on the merits rather than dismissal for want of...
Source-derived case information.
- Citation
- [2016] KEHC 2951 (KLR)
- Parties
- Plaintiff: Alice Wanjiku Muthamia; Plaintiff: James Kimathi Muthamia; Defendant: Nehemiah Muthamia; Defendant: Frankline Kinoti Gikunda
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 104 of 1996
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal refused; suit to proceed to hearing
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Wanjiku Muthamia
Plaintiff
James Kimathi Muthamia
Plaintiff
Nehemiah Muthamia
Defendant
Frankline Kinoti Gikunda
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay by the plaintiffs.
- 2 Whether the delay in prosecuting the suit has prejudiced the defendants and warrants dismissal.
- 3 Whether the plaintiffs have complied with procedural requirements to proceed to hearing.
Ratio Decidendi
The court found that although there had been delay in prosecuting the suit, all parties had complied with Order 11 of the Civil Procedure Rules and the case was ready for hearing. The court determined that the substantive issues in the suit warranted a hearing on the merits rather than dismissal for want of prosecution. The court emphasized that some issues raised could only be resolved at the hearing of the main suit and that justice would be better served by allowing the matter to proceed. Consequently, the application for dismissal was declined, and the suit was set down for hearing.
Court Disposition
application for dismissal refused; suit to proceed to hearing
Orders
- The application for dismissal of the suit dated 9th October, 2016 is not allowed.
- The suit will be heard on 17th November, 2016.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO. 104 OF 1996
ALICE WANJIKU MUTHAMIA ….......................1ST PLAINTIFF
JAMES KIMATHI MUTHAMIA..............................1ST PLAINTIIF
VERSUS
NEHEMIAH MUTHAMIA...................................1ST DEFENDANT
FRANKLINE KINOTI GIKUNDA........................2ND DEFENDANT
R U L I N G
[1] This application is dated 09/10/2014 and seeks orders:-
(1) THAT the suit be dismissed for want of prosecution.
(2) THAT the costs of the suit and application be provided for.
[2] The application is supported by the Affidavit of NEHEMIAH MUTHAMIA and has the following grounds:-
(1) THAT there has been inordinate delay on the part of the plaintiffs' in the prosecution of this suit.
(2) THAT is over three (3) years since the Plaintiff last took any step towards the prosecution of the suit.
(3) THAT plaintiff has evidently lost all desire to prosecute the matter/claim.
(4) THAT the defendant has been greatly prejudiced and continues to suffer from the Plaintiff's demonstrated delay in prosecuting the matter.
(5) The plaintiff is under a statutory duty to prosecute this matter expeditiously.
(6) A dismissal order in the circumstances would not be draconian or unreasonable.
(7) THAT delay defeats justice and the plaintiff's indolence cannot be rewarded with an order against dismissal.
[3] The application has been canvassed by way of Written Submissions with each party giving diametrically opposed assertions.
[4] I have considered the parties propositions . This Court takes umbrage in the Court of Appeal's erudite guidance, which although it concerned the way Injunctive Orders ought to be handled, is good guidance regarding how all Interlocutory applications should be handled. In Mbuthia Versus Jimba Credit Corporation [1988] KLR1,the Court opined as follows:-
“The correct approach in dealing with an application for an interlocutory injunction is not to decide the issue of fact, but rather to weigh up the relevant strength of each side's propositions. The lower court judge had gone beyond his proper duties and made final findings of fact on disputed affidavits.”
[5] Some of the issues the parties have canvassed can only be ascertained at the hearing of the main suit. Whether the Plaintiff is intent on prosecuting his case expeditiously will be determined once this case is given a hearing date. This case is a 1996 case. It merits being heard to establish the veracity of substantive issues. All the parties have agreed that they have fully complied with Order 11, CPR. I find that it is ready for hearing. For this reason, this case will not be dismissed.
[6] It is ordered as follows:-
(1) The application for dismissal of the suit dated 9th October, 2016 is not allowed.
(2) The suit will be heard on 17th November, 2016.
(3) Costs shall be in the cause.
[7] It is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 21ST DAY OF SEPTEMBER, 2016 IN THE PRESENCE OF:-
CA Daniel /James
Mwenda Mwarania for Plaintiffs
J.M Mwangi h/b Mutinda for the defendant
P. M NJOROGE
JUDGE