[2008] KEHC 2430 (KLR)
The court found that the respondents had failed to provide any explanation for not prosecuting their chamber summons dated 23rd July, 2007, despite a court order requiring its disposal before the appellants' application could be heard. This inaction was deemed an abuse of the court process as it prevented the...
Source-derived case information.
- Citation
- [2008] KEHC 2430 (KLR)
- Parties
- Appellant: Angelina N. Kamau; Appellant: Muganda Wasulwa t/a Keysian Auctioneers; Respondent: Purity G. Muthamia; Respondent: Hon. Richard Maoka Maore
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 316 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Chamber Summons for Want of Prosecution
- Outcome
- Application granted; chamber summons dated 23rd July, 2007 dismissed for want of prosecution; costs awarded to appellants.
- Judges
- GG Okwengu
- Legal Topics
- Dismissal for Want of Prosecution, Inherent Jurisdiction, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Angelina N. Kamau
Appellant
Muganda Wasulwa t/a Keysian Auctioneers
Appellant
Purity G. Muthamia
Respondent
Hon. Richard Maoka Maore
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Chamber Summons for Want of Prosecution
Legal Issues
- 1 Whether the chamber summons dated 23rd July, 2007 should be dismissed for want of prosecution.
- 2 Whether the court has inherent jurisdiction to dismiss an application for want of prosecution in the absence of specific statutory provision.
- 3 Whether the respondents' failure to prosecute their application constitutes an abuse of the court process.
Ratio Decidendi
The court found that the respondents had failed to provide any explanation for not prosecuting their chamber summons dated 23rd July, 2007, despite a court order requiring its disposal before the appellants' application could be heard. This inaction was deemed an abuse of the court process as it prevented the appellants from prosecuting their own application. The absence of a specific statutory provision for dismissal for want of prosecution does not limit the court's inherent jurisdiction under Section 3A of the Civil Procedure Act to make orders necessary to prevent abuse of process. Accordingly, the court exercised its inherent powers to dismiss the chamber summons dated 23rd July,...
Court Disposition
Application granted; chamber summons dated 23rd July, 2007 dismissed for want of prosecution; costs awarded to appellants.
Orders
- The notice of motion dated 10th March, 2008 is granted in terms of prayer 1.
- The chamber summons dated 23rd July, 2007 is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 316 of 2004
ANGELINA N. KAMAU……………………..1ST APPELLANT
MUGANDA WASULWA
T/A KEYSIAN AUCTIONEERS……………2ND APPELLANT
VESUS
PURITY G. MUTHAMIA……….…………1ST RESPONDENT
HON. RICHARD MAOKA MAORE.…….2ND RESPONDENT
R U L I N G
The applicants, who are the appellants in this appeal, seek to have the chamber summons dated 23rd July, 2007 dismissed for want of prosecution. The chamber summons dated 23rd July, 2007 was an application brought by the respondents, seeking enlargement of time to enable the respondents file grounds of opposition to the applicants’ application dated 14th December, 2004. The application also sought an order for review and setting aside of the orders made on 16th July, 2007. The orders of 16th July, 2007 struck out and expunged the respondents’ grounds of opposition dated 16th July, 2007 and a replying affidavit sworn by Purity G. Muthamia on the 16th July, 2007.
On the 26th of July, 2007 the court directed that the chamber summons dated 23rd July, 2007 be disposed off before the appellants’ chamber summons dated 14th December, 2004 is heard and disposed off. From that date, the respondents did not take any action to have the chamber summons dated 23rd July 2007 fixed for hearing. The appellant is now urging the court to exercise its inherent jurisdiction and dismiss the chamber summons dated 23rd July, 2007 for want of prosecution as it is being used by the respondent to prevent the hearing of the earlier application dated 14th December, 2004.
The respondent did not file any response to the application but urged the court to dismiss it contending that there was no time specified for prosecuting applications. It was further submitted that there was no law providing for dismissal of applications for want of prosecution.
Having considered this application and perused the entire court record, I find that the respondent has offered no explanation for their failure to prosecute the chamber summons dated 23rd July, 2007. In view of the court order that this chamber summons be disposed off before the appellant’s chamber summons dated 14th December, 2004, the failure to prosecute the chamber summons dated 23rd July, 2007 is an abuse of the court process as it is blocking the applicants from prosecuting their chamber summons dated 14th December, 2004. Under Section 3A of the Civil Procedure Act the inherent jurisdiction of this court to make orders as may be necessary for the ends of justice or to prevent abuse of the process of the court is not limited by the absence of specific provisions in the Civil Procedure Act and Rules providing for the relief sought. In the circumstances it is necessary for this court to intervene and exercise its inherent powers to prevent the apparent abuse of the court process by dismissing the chamber summons dated 23rd July, 2007.
Accordingly the notice of motion dated 10th March, 2008 is hereby granted in terms of prayer 1. I further award costs of the notice of motion dated 10th March, 2008 and the application dated 23rd July, 2007 to the appellants.
Dated and delivered this 22nd day of May, 2008
H. M. OKWENGU
JUDGE