[2009] KEHC 1057 (KLR)
The court found that the application for dismissal was properly served on the plaintiff, and the plaintiff's claim of non-service was unfounded. The only reason advanced for non-prosecution was the death of the plaintiff's advocate, which the court found insufficient to justify the prolonged inaction. However,...
Source-derived case information.
- Citation
- [2009] KEHC 1057 (KLR)
- Parties
- Plaintiff: Catholic Diocese of Murang'a; Defendant: Manasses Duncan Wachira; Defendant: Jacinta Wairimu Mubari; Defendant: Kirinyaga County Council
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 111 of 1997
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application to set aside dismissal allowed; suit reinstated subject to payment of costs.
- Judges
- J Karanja
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Process, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Catholic Diocese of Murang'a
Plaintiff
Manasses Duncan Wachira
Defendant
Jacinta Wairimu Mubari
Defendant
Kirinyaga County Council
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the application to dismiss the suit for want of prosecution was properly served on the plaintiff.
- 2 Whether the plaintiff has provided sufficient reason for non-prosecution and non-response to the dismissal application.
- 3 Whether the suit should be reinstated in the interest of justice.
Ratio Decidendi
The court found that the application for dismissal was properly served on the plaintiff, and the plaintiff's claim of non-service was unfounded. The only reason advanced for non-prosecution was the death of the plaintiff's advocate, which the court found insufficient to justify the prolonged inaction. However, considering that the plaintiff had substantially developed the land in question and the respondents had never been in physical occupation, the court held that the respondents would not suffer irreparable loss if the suit was reinstated. In the interest of justice and to allow the matter to be heard on its merits, the court exercised its discretion to reinstate the suit, subject to...
Court Disposition
Application to set aside dismissal allowed; suit reinstated subject to payment of costs.
Orders
- The application dated 3/10/2006 is allowed and the suit is reinstated.
- The plaintiff/applicant shall pay the respondents thrown away costs of 20,000 KES within 45 days from the date hereof.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Case 111 of 1997
CATHOLIC DIOCESE OF MURANG’A ……….....……………………PLAINTIFF
VERSUS
MANASSES DUNCAN WACHIRA………………………………1ST DEFENDANT
JACINTA WAIRIMU MUBARI………………………...………… 2ND DEFENDANT
KIRINYAGA COUNTY COUNCIL………………....……………..3RD DEFENDANT
R U L I N G
This suit was filed on 14/11/97 by the Catholic Diocese of Murang’a by way of originating summons. The same was served on the respondents and 1st and 2nd respondents filed their replying affidavits. 3rd Respondent filed grounds of opposition dated 23/9/98. Thereafter the case against the 3rd Respondent was struck out. The suit was to proceed with the rest of the parties but apparently the applicant did not move the court from July 2000. This prompted the Respondents to file the motion for dismissal of the suit under Order XVI Rule 5 of the Civil Procedure Rules.
The said application was in my considered view properly served on the Plaintiff/Respondent on 26/9/2005 as clearly indicated at the back of the supporting affidavit of the 1st Defendant/Applicant.
The affidavit of service dated 26/9/2005 shows clearly that the application was served on one Joseph Karanja Maina. I am actually perturbed that the Plaintiff/Respondent can actually turn round and deny service. I am satisfied that the said motion was properly served. It was not responded to and so my sister Judge Khaminwa allowed the same and dismissed the suit for want of prosecution on 25/11/2005. Almost 7 years later, the plaintiff filed the instant application asking the court to set aside that order. I would like to point out from the outset that Order 1X B Rule 8 cited by the Plaintiff/Applicant does not apply in this case as the suit was dismissed for want of prosecution under Order XVI Rule 5 and not for non-attendance under Order 1 X B. I nonetheless note that the applicant has invoked Section 3 A of the Civil Procedure Act and that cushions it against striking out for being defective. The reasons given for non prosecution of the suit was basically that their advocate on record died and they did not know how to prosecute the matter. (see paragraph 9 of supporting affidavit dated 3/10/2006).
As stated earlier, I like my predecessor believe that the application was properly served on the plaintiff but they chose to ignore the same. Non-service is therefore not an issue here.
Basically therefore other than general lethargy, there is no reason whatsoever as to why the plaintiff did not either prosecute the suit or respond to the application for dismissal. I have nonetheless perused the annexures to the Replying Affidavit including the valuation report. No doubt the plaintiff has substantially developed the plot in question. It is also not disputed that the Respondents have never been in physical occupation of the land and are not likely to suffer any loss that cannot be compensated by way of damages if the suit is reinstated. It is in the interest of justice that the matter be heard and decided on merit. I will therefore allow the application dated 3/10/2006 and reinstate the said suit but order that the Plaintiff/Applicant pays the Respondents thrown away costs of 20,000/= within 45 days from the date hereof failing which the order reinstating the suit will automatically lapse and the suit will stand dismissed.
Orders accordingly.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 5th day of Nov. 2009.
In presence of:- Ms Wairimu & Mr. Mogusu for Wangari