[2011] KEHC 800 (KLR)
The court found that the plaintiffs had demonstrated sufficient cause to warrant setting aside the order dismissing their suit for want of prosecution. The court considered that the execution of the dismissal order, including eviction, would render the pending application to set aside nugatory and potentially cause...
Source-derived case information.
- Citation
- [2011] KEHC 800 (KLR)
- Parties
- Applicant: Cecillia Kithinji & 22 Others; Respondent: County Council of Meru & 15 Others
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 112 of 1999
- Procedural Posture
- Chamber Summons / Ruling on Application for Stay and Setting Aside Dismissal Order
- Outcome
- application allowed; dismissal order set aside; suit restored; costs to defendants; time limit for hearing imposed
- Judges
- JW Lessit
- Legal Topics
- Stay of Execution, Dismissal for Want of Prosecution, Setting Aside Orders, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecillia Kithinji & 22 Others
Applicant
County Council of Meru & 15 Others
Respondent
Procedural Posture
Chamber Summons / Ruling on Application for Stay and Setting Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the plaintiffs' suit for want of prosecution should be set aside.
- 2 Whether a stay of execution of the dismissal ruling should be granted pending determination of the application to set aside.
- 3 Whether the attempted eviction of the applicants is lawful.
Ratio Decidendi
The court found that the plaintiffs had demonstrated sufficient cause to warrant setting aside the order dismissing their suit for want of prosecution. The court considered that the execution of the dismissal order, including eviction, would render the pending application to set aside nugatory and potentially cause irreparable harm. To prevent injustice and allow the matter to be heard on its merits, the court exercised its discretion to set aside the dismissal, restore the suit for hearing, and grant a stay of execution. The court also ordered the plaintiffs to pay thrown away costs to the defendants and directed that the suit be set down for hearing within 90 days, failing which it...
Court Disposition
application allowed; dismissal order set aside; suit restored; costs to defendants; time limit for hearing imposed
Orders
- The order of this court dated 23rd March, 2009 dismissing the plaintiffs' suit is set aside.
- The plaintiffs' case is restored for hearing.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
HCCC NO. 112 OF 1999
LESIIT J.
CECILLIA KITHINJI & 22 OTHERS……………….................…….PLAINTIFF/APPLICANT
VERSUS
COUNTY COUNCIL OF MERU & 15 OTHERS ……....……..DEFENDANT/RESPONDENT
RULING.
The application is a chamber summons dated 25th August, 2010 brought under Rules 3(2) of the High Court Vacation Practice Rules and under section 3, 3A of the Civil Procedure Act and Order 21 Rule 22(1) of the Civil Procedure Rule. It seeks the following orders:
1. That this Honourable Court to certify this application as urgent and that since of the same be dispensed with in the first instance
2. That this Honourable Court be pleased to grant an order staying execution of the Ruling of this court dated 13th March, 2009 which ruling dismissed the Plaintiffs’ case for want of prosecution pending the hearing and determination of the application dated 3rd June, 2010.
3. That costs of this application be provided for.
The application is premised on the following grounds:
(a) That the 14th August, 2010 attempted to evict the Applicant from Plot No. Meru Municipality/Block 11/732 the subject of this suit.
(b)That the above said eviction is being carried out pursuant to the Ruling of this court delivered on the 13th March, 2009.
(c)That the applicants having been aggrieved by the same ruling has already filed an application to set the same aside dated 3rd June, 2010 and which is still pending in court for hearing.
(d)That the execution of the instant suit is immense and will render the application dated 3rd June, 2010 nugatory.
(e)That the intended eviction is illegal
1. That the order of this court dated 23rd March, 2009 dismissing the Plaintiffs suit be and is hereby set aside.
2. The court hereby restores the plaintiff’s case for hearing.
3. The plaintiff to pay thrown away costs to defendants to be shared equally among the plaintiffs.
4. The plaintiffs have 90 days from today to set down the suit for hearing in default of which the suit will stand dismissed.Those are my orders
DATED, SIGNED AND DELIVERED THIS 24TH DAY OF NOVEMBER, 2011
J. LESIIT
JUDGE