[2024] KEHC 15961 (KLR)
The court found that the applicant failed to demonstrate diligence in prosecuting his application. Despite being given ample opportunity and clear directions, he did not file the required affidavit of service or written submissions, and his explanations for the delay were unsatisfactory. The court emphasized that...
Source-derived case information.
- Citation
- [2024] KEHC 15961 (KLR)
- Parties
- Applicant: Zakayo Henry Angoyia; Respondent: Johnstone Makanga Joseph; Respondent: The Chief Ebuyai Location; Respondent: The Principal Magistrate Court At Vihiga; Respondent: The Honourable Attorney General; Interested Party: The Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E051 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Notice of Motion for Want of Prosecution
- Outcome
- application dismissed for want of prosecution
- Judges
- JN Kamau
- Legal Topics
- Dismissal for Want of Prosecution, Affidavit of Service, Case Management, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zakayo Henry Angoyia
Applicant
Johnstone Makanga Joseph
Respondent
The Chief Ebuyai Location
Respondent
The Principal Magistrate Court At Vihiga
Respondent
The Honourable Attorney General
Respondent
The Director of Public Prosecution
Interested Party
Procedural Posture
Miscellaneous Criminal Application / Ruling on Notice of Motion for Want of Prosecution
Legal Issues
- 1 Whether the applicant demonstrated diligence in prosecuting the application.
- 2 Whether failure to file affidavit of service and submissions justified dismissal for want of prosecution.
- 3 Whether the pendency of the application with a stay in another court warranted dismissal.
Ratio Decidendi
The court found that the applicant failed to demonstrate diligence in prosecuting his application. Despite being given ample opportunity and clear directions, he did not file the required affidavit of service or written submissions, and his explanations for the delay were unsatisfactory. The court emphasized that the responsibility to move the case forward rested with the applicant, and the respondents' failure to respond did not excuse his inaction. Given the prolonged pendency of the application and the existence of a stay in another court, the court concluded that the application should be dismissed for want of prosecution.
Court Disposition
application dismissed for want of prosecution
Orders
- The Notice of Motion application dated 21st August 2023 and filed on 24th August 2023 is dismissed for want of prosecution with no order as to costs.
- Direction no (6) of the order of 29th November 2023 is set aside and/or vacated forthwith.
Full Case Text
Judgment text and source record
32 paragraphs
Angoyia v Joseph & 3 others; Director of Public Prosecution (Interested Party) (Miscellaneous Criminal Application E051 of 2023) [2024] KEHC 15961 (KLR) (18 December 2024) (Ruling)
Neutral citation: [2024] KEHC 15961 (KLR)
Republic of Kenya
In the High Court at Vihiga
Miscellaneous Criminal Application E051 of 2023
JN Kamau, J
December 18, 2024
Between
Zakayo Henry Angoyia
Applicant
and
Johnstone Makanga Joseph
1st Respondent
The Chief Ebuyai Location
2nd Respondent
The Principal Magistrate Court At Vihiga
3rd Respondent
The Honourable Attorney General
4th Respondent
and
The Director of Public Prosecution
Interested Party
Ruling
1. On 29th November 2023, this court gave elaborate directions on the filing of Affidavits and Written Submissions. It directed the Applicant to extract the order for service upon the 1st Respondent for his further action. He collected the order on 6th December 2023. This court gave him time to present the Affidavit of Service evidencing service upon the 1st Respondent. This would have assisted this court to ascertain if the Applicant was keen in prosecuting the case.
2. Although the matter was taken out of the cause list of 20th February 2024 and the Applicant was informed of the new date of 4th April 2024 by Counsel for the Interested Party on 3rd April 2024 that the matter would be mentioned on 4th April 2024, the Applicant did not attend court on 17th December 2024. He admitted that he was aware of the date but that there was no law in Kenya allowing for verbal service.
3. On 17th December 2024, the Applicant informed the court that he had filed Written Submissions but he had left them at home. When he came to court today, he informed the court that he did not file the Supplementary Affidavit and Written Submissions by 31st January 2024 because the Respondents and Interested Party did not serve him with any response to his Notice of Motion application dated 21st August 2023 and filed on 24th August 2023.
4. It is the Applicant’s matter and he has the duty to prosecute it. Failure by the Respondents and Interested Party to respond to the said application ought not to have held his hands since 29th November 2023. He did not also avail any Affidavit of Service as was requested by the court. He left at 11. 40am. It is now 14. 17pm but he has not returned.
5. While the court has looked at his Reply to the Notice to Show Cause that he swore on 31st August 2024 and filed on 16th December 2024, it is evident that he has tried to explain the reasons for not prosecuting his matter but the same were not satisfactory to this court. An application ought not to pend in court for over a year moreso when there is a stay of proceedings in another court.
6. Accordingly, as it is clear that the Applicant is not keen to prosecute this matter, the Notice of Motion application dated 21st August 2023 and filed on 24th August 2023 be and is hereby dismissed for want of prosecution with no order as to costs.
7. The effect of this order is that direction no (6) of the order of 29th November 2023 be and is hereby set aside and/or vacated forthwith. File to be closed forthwith.
8. Orders accordingly.
DATED AND DELIVERED AT VIHIGA THIS 18H DAY OF DECEMBER 2024J. KAMAUJUDGE