[2016] KEHC 3562 (KLR)
The court found that the Petitioners had taken no steps to prosecute the petition for over a year after the Respondents filed their replying affidavit. The Petitioners and their advocates were properly served with the application to dismiss and the hearing date, yet neither responded nor appeared in court. The court...
Source-derived case information.
- Citation
- [2016] KEHC 3562 (KLR)
- Parties
- Applicant: David Mweu Cheburet & 17 Others; Respondent: The County Government of Nakuru; Respondent: Hon. Kinuthia Mbugua; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Petition 15 of 2015
- Procedural Posture
- Constitutional Petition / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- Petition dismissed for want of prosecution. No order as to costs.
- Judges
- JV Juma
- Legal Topics
- Dismissal for Want of Prosecution, Ex Parte Orders, Inherent Jurisdiction, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mweu Cheburet & 17 Others
Applicant
The County Government of Nakuru
Respondent
Hon. Kinuthia Mbugua
Respondent
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the petition should be dismissed for want of prosecution.
- 2 Whether the petitioners have demonstrated interest in prosecuting the suit.
- 3 Whether the court should exercise its inherent jurisdiction to dismiss the suit.
Ratio Decidendi
The court found that the Petitioners had taken no steps to prosecute the petition for over a year after the Respondents filed their replying affidavit. The Petitioners and their advocates were properly served with the application to dismiss and the hearing date, yet neither responded nor appeared in court. The court concluded that the Petitioners had lost interest in the matter and were merely using the petition as a ploy to obtain ex parte orders. In the circumstances, the court exercised its inherent jurisdiction to dismiss the petition for want of prosecution, holding that a suit cannot remain active indefinitely without prosecution.
Court Disposition
Petition dismissed for want of prosecution. No order as to costs.
Orders
- The petition is dismissed for want of prosecution.
- No orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
PETITION NO. 15 OF 2015
DAVID MWEU CHEBURET & 17 OTHERS …………………...…… PETITIONERS
VERSUS
THE COUNTY GOVERNMENT OF NAKURU …...………...….. 1ST RESPONDENT
HON. KINUTHIA MBUGUA ……………………………………. 2ND RESPONDENT
THE ATTORNEY GENERAL …………….……..………………. 3RD RESPONDENT
RULING
Before court is the Notice of Motion dated 4/6/2016 seeking orders as follows
“1. THAT the Honourable Court does in exercise of its inherent jurisdiction do dismiss the suit herein for want of prosecution.
2. THAT the Petitioners do pay the costs of this application”
The application was set down for hearing on 19/7/2016. The applicants were properly served through their lawyer Messrs Ngakaka S. M & E Advocates. Proof of service is evidence by the Affidavit of Service filed in court on 14/7/2016 as well as a copy of the Notice of Motion duly stamped by the Advocate’s firm.
As submitted Mr. Okumu counsel for the 1st and 2nd Respondents in this Petition was filed at Nakuru High Court on 25/3/2015. Ex Parte orders were granted. The Respondents having been served and filed their replying affidavit on 7/5/2015. From that date more than a year has elapsed and the Petitioners have taken no steps to prosecute the suit. They appear to be resting comfortable with the Ex Parte orders. The fact that the Petitioners have no further interest in this matter is evident from the fact that even after being served well in advance of the hearing date properly with this Notice of Motion and the hearing date, neither the Petitioners nor their appointed advocate responded to the motion and/or defend/oppose the same. Only the 3rd Respondent the Hon. Attorney General appeared and voiced support for the motion.
From the above I am satisfied that the filing of the petition was a mere ploy to obtain Ex Parte orders. The suit cannot remain active indefinitely. I therefore allow this application and I do hereby dismiss the petition or want of prosecution. No orders on costs.
Dated in Nakuru this 29th day of July, 2016
Maureen Odero
Judge
Mr. Okumu for 1st and 2nd Respondents
No appearance by Petitioner