[2011] KEHC 961 (KLR)
The court found that there was no suit properly before it as the file from Kerugoya had not been transferred to Embu, and thus there was nothing to dismiss in Miscellaneous Application No. 15 of 2008. Furthermore, the suit by the 1st plaintiff had abated due to failure to substitute within the prescribed period...
Source-derived case information.
- Citation
- [2011] KEHC 961 (KLR)
- Parties
- Plaintiff: Cyrus Nyaga Kabute; Plaintiff: Silas Njagi Njue; Applicant: Fredrick Nyaga David; Applicant: Francis Njeru David; Applicant: Leonard Kathumu Karani; Applicant: John Kabute Kimotho
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 15 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Abatement of Suit, Transfer of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cyrus Nyaga Kabute
Plaintiff
Silas Njagi Njue
Plaintiff
Fredrick Nyaga David
Applicant
Francis Njeru David
Applicant
Leonard Kathumu Karani
Applicant
John Kabute Kimotho
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the suit has abated due to the death of the 1st plaintiff and failure to substitute within the prescribed time.
- 3 Whether there is a suit properly before the court for dismissal.
Ratio Decidendi
The court found that there was no suit properly before it as the file from Kerugoya had not been transferred to Embu, and thus there was nothing to dismiss in Miscellaneous Application No. 15 of 2008. Furthermore, the suit by the 1st plaintiff had abated due to failure to substitute within the prescribed period after his death. The court directed counsel to confirm the status of the Kerugoya file and make any necessary applications in the appropriate file, if and when transferred. The application for dismissal was therefore dismissed, with no order as to costs.
Court Disposition
application dismissed
Orders
- The application for dismissal for want of prosecution is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. APPLICATION NO. 15 OF 2008
CYRUS NYAGA KABUTE................................1ST PLAINTIFF/RESPONDENT
SILAS NJAGI NJUE......................................2ND PLAINTIFF/RESPONDENT
VERSUS
FREDRICK NYAGA DAVID.....................1ST RESPONDENT/APPLICANT
FRANCIS NJERU DAVID.......................2ND RESPONDENT/APPLICANT
LEONARD KATHUMU KARANI..............3RD RESPONDENT/APPLICANT
JOHN KABUTE KIMOTHO........................4TH RESPONDENT/APPLICANT
R U L I N G
This is the Application Notice of Motion dated 18/7/2011 brought under Order XVI rule 5 Civil Procedure Rules for dismissal of the Plaintiff’s suit for Want of Prosecution. It’s supported by the affidavit of the Applicant’s Counsel.
There is no Replying affidavit to the Application. The 2nd Respondent/Plaintiff says the 1st Plaintiff died on 19/5/2010. The record shows that on Application of the Plaintiffs the court on 3/7/2008 transferred Kerugoya Civil Suit No.444/03 to Embu Court. As far as this Miscellaneous Application is concerned with the issuance of the said Order the Application was spent. It appears that inspite of the Order issued the Kerugoya matter has never been transferred. The 1st Plaintiff is said to have died on 19/5/2010. Since no Application has been filed in time with Order 24 rule 3(2) Civil Procedure Rules and it’s over a year since his death its clear his suit has abated.
However given that there is no matter registered here as former Kerugoya PMCC 444/03 I have nothing to dismiss as far as this Miscellaneous No.15/08 is concerned.
I therefore direct Counsel to consult with the registry incharge to confirm if the said Kerugoya Civil Case No.444/03 was ever transferred and if so transferred the number assigned to it.
Thereafter she can make the necessary application in that particular file.
Under the same breathe I direct the Deputy Register to call for the file immediately if it was never called for.
The Application stands dismissed. No orders as to costs.
DELIVERED, SIGNED AND DATED AT EMBU THIS 17th DAY OF NOVEMBER 2011.
H.I. ONG’UDI
J U D G E