[2015] KEHC 3937 (KLR)
The court found that although the suit could have been dismissed for want of prosecution due to inactivity between May 2010 and January 2015, the interests of justice required that all parties be given an opportunity to be heard. The applicant, having been appointed as the legal representative of the deceased...
Source-derived case information.
- Citation
- [2015] KEHC 3937 (KLR)
- Parties
- Applicant: County Council of Tharaka; Applicant: County Government of Tharaka Nithi; Respondent: Tharaka North District Land Disputes Tribunal; Interested Party: Bernard K. Nkanga; Applicant: Agnes Matiira Kamwara
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 27 of 2010
- Procedural Posture
- Judicial Review / Ruling on Substitution and Directions
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Party Substitution, Legal Representative, Land Dispute Tribunal, Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
County Council of Tharaka
Applicant
County Government of Tharaka Nithi
Applicant
Tharaka North District Land Disputes Tribunal
Respondent
Bernard K. Nkanga
Interested Party
Agnes Matiira Kamwara
Applicant
Procedural Posture
Judicial Review / Ruling on Substitution and Directions
Legal Issues
- 1 Whether the applicant should be substituted as the Interested Party in place of the deceased Bernard K. Nkanga.
- 2 Whether the Ex-parte Applicant should be substituted with the County Government of Tharaka Nithi.
- 3 Whether the suit should be dismissed for want of prosecution or allowed to proceed in the interest of justice.
Ratio Decidendi
The court found that although the suit could have been dismissed for want of prosecution due to inactivity between May 2010 and January 2015, the interests of justice required that all parties be given an opportunity to be heard. The applicant, having been appointed as the legal representative of the deceased Interested Party, was entitled to be substituted in the proceedings. Similarly, the substitution of the Ex-parte Applicant with the County Government of Tharaka Nithi was warranted. The court allowed the application for substitution and issued directions for the filing and service of submissions to ensure the matter proceeds to determination on the merits.
Court Disposition
application allowed
Orders
- The application for substitution is allowed with costs in the cause.
- Ex-parte applicant to obtain instructions within 30 days and file written submissions within 60 days after closure of the period allowed for instructions.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
JUDICIAL REVIEW NO. 27 OF 2010
COUNTY COUNCIL OF THARAKA.................................................EX-PARTE APPLICANT
COUNTY GOVERNMENT OF THARAKA NITHI........INTENDED EX-PARTE APPLICANT
VERSUS
THARAKA NORTH DISTRICT LAND DISPUTES TRIBUNAL..................RESPONDENT
BERNARD K. NKANGA.......................................................................INTERESTED PARTY
AGNES MATIIRA KAMWARA..................APPLICANT/INTENDED INTERESTED PARTY
R U L I N G
This application which is dated 3rd November, 2014 seeks orders;
That the applicant herein be substituted as the Interested Party instead of BERNARD K. NKANGA (now deceased)
That the Ex-parte Applicant herein be substituted with the County Government of Tharaka Nithi
Costs of the application be costs in the cause.
It has the following grounds:
The interested party herein died on the 25. 9.2010 while this suit was still pending
That the applicant has been appointed legal representative of the deceased for purposes of continuing with this case.
During interpartes hearing the application was not opposed. It is allowed.
The Court notes that the suit merited dismissal for want of prosecution as no step had been taken between 1. 5.2010 and 28. 1.2015. However, in the interest of justice, all parties need to be heard. I issue the following orders:
This application is allowed with costs to be in the cause.
Ex- parte applicant to obtain instructions within 30 days of today and to file written submissions within 60 days after closure of the period allowed for instructions.
All apposite documents in this case to be served upon the Attorney
General, on behalf of the Respondent, the defunct Tharaka North District Land Disputes Tribunal.
The Interested Party and the AG to file written submissions within 30 days after service of the Exparte Applicant's submissions.
Mention to confirm filing of submissions on 14th July, 2015.
It is so ordered.
Delivered in Open court at Meru this 23rd day of April, 2015 in the presence of:
Cc. Daniel
Mutegi for Exparte Applicant/Respondent
J. G. Gitonga for the Applicant
P. M. NJOROGE
JUDGE