[2014] KEELC 224 (KLR)
The court found that the plaintiff did not comply with the order of 12th February, 2014, which required the suit to be fixed for hearing within 30 days. The court clarified that granting a mention date outside the 30-day period did not constitute an extension, variation, or stay of the substantive order. Since the...
Source-derived case information.
- Citation
- [2014] KEELC 224 (KLR)
- Parties
- Plaintiff: Astrid Doris Petra Bwaza; Defendant: Salesians of Don Bosco
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 130 of 2011
- Procedural Posture
- Land and Environment Case / Ruling on Application to Dismiss Suit for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- SN Mukunya
- Legal Topics
- Dismissal for Want of Prosecution, Compliance With Court Orders, Fixing Hearing Dates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Astrid Doris Petra Bwaza
Plaintiff
Salesians of Don Bosco
Defendant
Procedural Posture
Land and Environment Case / Ruling on Application to Dismiss Suit for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff complied with the court order of 12th February, 2014 to fix the suit for hearing within 30 days.
- 2 Whether the court extended the time for the plaintiff to fix the suit for hearing.
- 3 Whether the suit should be dismissed for want of prosecution due to non-compliance with the court order.
Ratio Decidendi
The court found that the plaintiff did not comply with the order of 12th February, 2014, which required the suit to be fixed for hearing within 30 days. The court clarified that granting a mention date outside the 30-day period did not constitute an extension, variation, or stay of the substantive order. Since the plaintiff neither sought nor obtained any formal relief from the order, the obligation to fix the suit for hearing remained in force. The court emphasized that court orders must be obeyed at all times and that non-compliance entitled the defendant to seek dismissal of the suit for want of prosecution. Accordingly, the court dismissed the suit with costs to the defendant.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
25 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 130 OF 2011
ASTRID DORIS PETRA BWAZA ....................... PLAINTIFF/RESPONDENT
-VERSUS-
SALESIANS OF DON BOSCO ............................. DEFENDANT/APPLICANT
RULING
[1] In my ruling dated 12th February, 2014 I stated;
"It is quite apparent that the plaintiff in this case wants to use the consent order as a shield to prevent any further step to be moved in this case. The Preliminary Objection he raised has no merits in view of what I have stated above. The consent order of 1st November 2011 is hereby set aside. This suit shall be fixed for hearing within 30 days failing which the respondent shall be at liberty to apply for it to be struck out for want of prosecution. The applicant in this application shall have costs of his application of 3rd March, 2013.
Dated and delivered in open Court at Mombasa this 12th day of February, 2014".
When the above ruling was read, counsel for the respondent applied for leave to appeal which I duly granted. This matter was listed for hearing on 13th March, 2014. Counsel for the applicant applied for the matter to be mentioned outside the 30 days. I granted the said mention outside the 30 days. The matter thereafter came for mention on 4th April, 2014 and on 10th April, 2014.
[2] The parties later fixed the case in the registry for hearing on 19th June, 2014 for the notice of motion dated 7th April, 2014. The application of 7th April, 2014 was for the suit herein to be dismissed for want of prosecution on the grounds that the plaintiff has not made any efforts to list the suit for hearing within one month as ordered by the court. The respondent now says that the court extended the 30 days the plaintiff was supposed to fix his suit for hearing.
[3]Did the court really extend that time?
On 13th March, 2014 when the court had fixed the case for mention to find out if its orders of 12th February had been complied with, the plaintiff had not fixed the suit for hearing. The applicant's advocate then applied for time to be extended to mention the matter outside 30 days. This request was granted. There was no request to set aside, vary extend or stay the courts orders of 12th February, 2014. They remained in force. Requesting for a mention date outside 30 days ordered by court in absence of the advocate for the defendant cannot be said to have waived, varied, stayed or extended those orders of 12th February, 2014. If the applicant wished to have any of the aforesaid reliefs he should have asked for them. He had benefit of counsel and he must have been well advised.
It is therefore true that the plaintiff did not comply with the court orders of 12th February, 2014. The defendant was well within his rights to apply for the suit to be dismissed as per the order aforesaid.
[4] Court orders should be obeyed at all times. The court order under reference was merely to fix the suit for hearing. This was not done. These court orders were neither challenged nor stayed. I am therefore convinced that the plaintiff has made a case for the plaintiff's suit to be dismissed as ordered by the court order of 12th February, 2014 aforesaid. This suit is dismissed with costs to the defendants.
Dated and delivered in open court at Mombasa this 16th day of September 2014.
S. MUKUNYA
JUDGE
16. 9.2014
In the presence of:
Miss. Mutuku advocate for Mr. Opullu advocate for the plaintiff
Mr. Achoki Advocate for the defendant