[2007] KEHC 2817 (KLR)
The court found that the Plaintiffs had not acted diligently in prosecuting their suit, as no steps had been taken to list the main suit for hearing despite the passage of significant time and the existence of interlocutory orders. The court rejected the Plaintiffs' justification that interlocutory applications and...
Source-derived case information.
- Citation
- [2007] KEHC 2817 (KLR)
- Parties
- Plaintiff: Charles Mugo; Plaintiff: Johnson Kabutu; Plaintiff: John Gitau; Plaintiff: Kibaara Kinya; Defendant: Peter Gachoki Mburia; Defendant: Peter Mbogo Nyumu; Defendant: David Karimi Nyumu; Defendant: Paul Muriithi Nyumu; Defendant: Esther Micere Nyumu; Defendant: Hannah Wambura Kanguru; Defendant: Margaret Wambeti Kariithi; Defendant: Grace Wangithi Machai; Defendant: Crispon Kihara Machai; Defendant: Sospeter Kabuchwa Machai; Defendant: Josephat Kariuki Mahcai; Defendant: Eliud Rugaita Murane; Defendant: James Ndege Njuguna; Defendant: Josephat Murage Mararo; Defendant: Joseph Njenga Gioko; Defendant: Gichubi Peter Amos; Defendant: Stephen Munyi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 193 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Conditional adjournment; suit to be listed for hearing within six months or stand dismissed.
- Judges
- GG Okwengu
- Legal Topics
- Dismissal for Want of Prosecution, Interlocutory Injunctions, Delay in Prosecution, Land Ownership Disputes
- 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
Charles Mugo
Plaintiff
Johnson Kabutu
Plaintiff
John Gitau
Plaintiff
Kibaara Kinya
Plaintiff
Peter Gachoki Mburia
Defendant
Peter Mbogo Nyumu
Defendant
David Karimi Nyumu
Defendant
Paul Muriithi Nyumu
Defendant
Esther Micere Nyumu
Defendant
Hannah Wambura Kanguru
Defendant
Margaret Wambeti Kariithi
Defendant
Grace Wangithi Machai
Defendant
Crispon Kihara Machai
Defendant
Sospeter Kabuchwa Machai
Defendant
Josephat Kariuki Mahcai
Defendant
Eliud Rugaita Murane
Defendant
James Ndege Njuguna
Defendant
Josephat Murage Mararo
Defendant
Joseph Njenga Gioko
Defendant
Gichubi Peter Amos
Defendant
Stephen Munyi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay by the Plaintiffs.
- 2 Whether the Plaintiffs have provided sufficient justification for the delay in prosecuting the main suit.
- 3 Whether the existence of interlocutory injunctive orders justifies the Plaintiffs' inaction.
Ratio Decidendi
The court found that the Plaintiffs had not acted diligently in prosecuting their suit, as no steps had been taken to list the main suit for hearing despite the passage of significant time and the existence of interlocutory orders. The court rejected the Plaintiffs' justification that interlocutory applications and the death of one Plaintiff excused the delay, noting that no effort had been made to appoint an administrator for the deceased Plaintiff. However, given the emotive nature of land disputes and the undesirability of dismissing the suit without a hearing on the merits, the court exercised its discretion to grant the Plaintiffs a final opportunity. The Plaintiffs were ordered to...
Court Disposition
Conditional adjournment; suit to be listed for hearing within six months or stand dismissed.
Orders
- Plaintiffs to take action to list the suit for hearing and have it heard within six months from the date of the ruling.
- If the Plaintiffs fail to comply, the suit shall stand dismissed.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Case 193 of 2002
CHARLES MUGO………………………...….......….…….1ST PLAINTIFF
JOHNSON KABUTU……………………..……….......….2ND PLAINTIFF
JOHN GITAU……………………………..........……....….3RD PLAINTIFF
KIBAARA KINYA…………………….........………………4TH PLAINTIFF
VERSUS
PETER GACHOKI MBURIA………….……....………1ST DEFENDANT
PETER MBOGO NYUMU…………………...……….2ND DEFENDANT
DAVID KARIMI NYUMU………………….…....…….3RD DEFENDANT
PAUL MURIITHI NYUMU……………….…....………4TH DEFENDANT
ESTHER MICERE NYUMU………….….…….……..5TH DEFENDANT
HANNAH WAMBURA KANGURU……...……...……6TH DEFENDANT
MARGARET WAMBETI KARIITHI………....………7TH DEFENDANT
GRACE WANGITHI MACHAI……………….....…….8TH DEFENDANT
CRISPON KIHARA MACHAI……………….…...……9TH DEFENDANT
SOSPETER KABUCHWA MACHAI……..….……..10TH DEFENDANT
JOSEPHAT KARIUKI MAHCAI…………....……….11TH DEFENDANT
ELIUD RUGAITA MURANE……………...…..……..12TH DEFENDANT
JAMES NDEGE NJUGUNA…………….….……….13TH DEFENDANT
JOSEPHAT MURAGE MARARO…….……………14TH DEFENDANT
JOSEPH NJENGA GIOKO…………………………15TH DEFENDANT
GICHUBI PETER AMOS…………………………...16TH DEFENDANT
STEPHEN MUNYI…………………….…………….17TH DEFENDANT
R U L I N G
By a notice of motion dated 20th September 2006 brought under Order XVI rule 5 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the Defendant/Applicant seeks to have the Plaintiff’s suit dismissed for want of prosecution.
It is contended that the Plaintiff/Respondent are no longer interested in the suit and that is why they have taken no action to have the suit set down for hearing since 4th August 2001 when the suit was filed.
In an affidavit sworn by the applicant’s advocate Francis Kalwa, it is deponed that the Respondent filed a Chamber Summons on 12th November 2002 and obtained an order of injunction which orders have remained in force to date, but that notwithstanding the applicant’s protestations the Respondent has taken no action to have their suit listed down for hearing since 4th October 2001 when the suit was filed.
In a replying affidavit David Njue Kabungo who is one of the Respondents sets out the chronology of events showing that since the filing of the suit on 4th October 2001 a lot of activities have taken place including the transfer of the suit from Nairobi High Court to Nyeri, the hearing of an application for an injunction and an application seeking to set aside the injunctive orders which were granted, contempt proceedings and an application by the Defendant/Applicant for striking out the Plaintiff’s suit, the last two applications being still pending.
It is contended that the delay in having the main suit listed for hearing has been caused by the numerous applications and also by the death of one of the Plaintiffs.
I have carefully considered the application, the affidavit in support and in reply together with all the annextures thereto as well as the entire court record.
It is evident that the hearing of this suit has been hampered by the parties concentrating on the hearing of the applications rather than the hearing of the main suit. It is also evident that the Plaintiff/Respondent has not acted diligently in ensuring that their suit is disposed off expeditiously as no efforts have been made by the Plaintiffs to list the main suit for hearing. The fact that one of the Plaintiffs is now deceased cannot be a bar to the suit proceeding. The court has not been shown what efforts have been made to have any person appointed an administrator of the deceased Plaintiff for purposes of proceeding with this suit. I would concur with the submissions of the applicant’s advocate that the Plaintiffs/Respondents appear to be comfortable with the interlocutory injunctive orders and are therefore not anxious to have this matter disposed off. While I recognise the fact that this suit involves the emotive issue of land ownership, and that it would not be desirable to dismiss the suit for want of prosecution without hearing the suit on merit, it is evident that the Plaintiff/Respondent requires to be jump started in order to make them move forward with their suit.
For this reason I will order that the Plaintiffs shall take action to have their suit listed for hearing and to have the suit heard within 6 months from the date hereof, failing which the Plaintiffs’ suit shall stand dismissed.
The Defendants shall have costs of this application.
Those shall be the orders of this court.
Dated, signed and delivered this 8th day of February 2007.
H. M. OKWENGU
JUDGE