[2007] KEHC 2414 (KLR)
The court found that although the plaintiff had not taken steps to prosecute the case within the stipulated time, the explanation provided was reasonable. The death of the 1st defendant shortly after the suit was filed and the reluctance of the 2nd defendant to take out letters of administration justified the delay....
Source-derived case information.
- Citation
- [2007] KEHC 2414 (KLR)
- Parties
- Plaintiff: Bismark Nyakundi Nyanyuki; Defendant: Dalkudi Ruto Chepsat; Defendant: Magdalene Chepkorir Ruto
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 73 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed; costs awarded to applicant
- Judges
- K Bauni
- Legal Topics
- Dismissal for Want of Prosecution, Substitution of Parties, Letters of Administration, Co Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bismark Nyakundi Nyanyuki
Plaintiff
Dalkudi Ruto Chepsat
Defendant
Magdalene Chepkorir Ruto
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 under Order 16 rule 5(d) CPR.
- 2 Whether the plaintiff's explanation for delay in prosecuting the suit is sufficient to avoid dismissal.
- 3 Whether substitution of the deceased 1st defendant is necessary before the suit can proceed.
Ratio Decidendi
The court found that although the plaintiff had not taken steps to prosecute the case within the stipulated time, the explanation provided was reasonable. The death of the 1st defendant shortly after the suit was filed and the reluctance of the 2nd defendant to take out letters of administration justified the delay. The court held that the plaintiff could proceed with substitution without needing letters of administration and exercised its discretion to allow the suit to continue. The application for dismissal was therefore dismissed, but the plaintiff was ordered to pay the costs of the application to the applicant.
Court Disposition
application dismissed; costs awarded to applicant
Orders
- The application for dismissal for want of prosecution is dismissed.
- The respondent (plaintiff) shall pay costs of the application, assessed at KES 3,500, to the applicant (2nd defendant).
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
Civil Suit 73 of 2005
BISMARK NYAKUNDI NYANYUKI:……............................……PLAINTIFF
VERSUS
DALKUDI RUTO CHEPSAT:………….................……..1ST DEFENDANT
MAGDALENE CHEPKORIR RUTO:…....................…..2ND DEFENDANT
R U L I N G
The applicant MAGDALINE CHEPKORIR RUTO who is the second defendant in the suit has brought this application under order 16 rule 5(d) CPR seeking the court to dismiss the suit for want of prosecution and costs of the suit.
She deponed that since the suit was filed on 9th August 2005 it had not been fixed for hearing. By the time the application was filed 10 months had passed.
In reply the plaintiff stated that the applicant who is the 2nd defendant is a wife of the 1st defendant. The first defendant died and the applicant has been reluctant to take letters of Administration to facilitate substitution. Both defendants were register as co-owners of land in dispute.
Indeed the Respondent had not taken any steps to prosecute the case within the stipulated time. However the explanation by the plaintiff is pliable. The 1st defendant is said to have died soon after the suit was filed. The applicant by his wife is the person who should take letters of Administration but she is reluctant to do so. The Respondent could not fix the case for hearing before substitution. Both defendants were registered as co-owners of land in dispute.
Indeed the Respondent had not taken any steps to prosecute the case within the stipulated time. However the explanation by the plaintiff is plumable. The 1st defendant is said to have died soon after the suit was filed. The applicant being his wife is the person who should take Letters of Administration but she is reluctant to do so. The Respondent could not fix the case for hearing before substitution. He should take the necessary steps to substitute as to do so he does not need Letters of Administration. I will use my discretion and grant him a chance to put his house in order.
In the circumstances the application is dismissed. Respondent will however pay costs of the application arrived at Shs.3500/= to the applicant.
It is so ordered.
Dated and Delivered at Eldoret on 3rd July,2007
KABURU BAUNI
JUDGE
Delivered in the Presence of:-
C/C - David
Mr. Mwetich for Odede for Applicant
Mr. Buluma for Ombati for Respondent.