[2013] KEHC 2982 (KLR)
The court found that the suit had been dismissed for want of prosecution on 20th December, 2006, and that the applicant had not taken any steps to revive the suit until a day before the taxation hearing. The applicant's claim that he was unaware of the dismissal due to his previous counsel's failure to inform him...
Source-derived case information.
- Citation
- [2013] KEHC 2982 (KLR)
- Parties
- Applicant: Edward J Muia (suing on his behalf & all members of Kimathi Estate Welfare Association); Respondent: Nairobi City Council & 4 Others; Respondent: Simon Kirunga Ikenye (5th Defendant)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 900 of 2007
- Procedural Posture
- Notice of Motion / Ruling on Application to Stay Taxation and Set Aside Judgment
- Outcome
- application dismissed with costs to the 5th Defendant
- Judges
- LN Gacheru
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Judgment, Stay of Taxation, Overriding Objective, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward J Muia (suing on his behalf & all members of Kimathi Estate Welfare Association)
Applicant
Nairobi City Council & 4 Others
Respondent
Simon Kirunga Ikenye (5th Defendant)
Respondent
Procedural Posture
Notice of Motion / Ruling on Application to Stay Taxation and Set Aside Judgment
Legal Issues
- 1 Whether the court should grant a stay of taxation pending hearing of the application.
- 2 Whether the judgment dismissing the suit for want of prosecution should be set aside.
- 3 Whether the application amounts to an abuse of the court process.
Ratio Decidendi
The court found that the suit had been dismissed for want of prosecution on 20th December, 2006, and that the applicant had not taken any steps to revive the suit until a day before the taxation hearing. The applicant's claim that he was unaware of the dismissal due to his previous counsel's failure to inform him was unsupported by evidence of any effort on his part to follow up on the matter. The court held that the application was intended to delay the final disposition of the case, contrary to the overriding objective of the Civil Procedure Act, and amounted to an abuse of court process. Consequently, the application to stay taxation and set aside the judgment was dismissed with costs...
Court Disposition
application dismissed with costs to the 5th Defendant
Orders
- The applicant’s application dated 2/5/2013 is dismissed with costs to the 5th Defendant.
- The 5th Defendant’s application for taxation of the Bill of Cost shall proceed for hearing.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC NO 900 OF 2007
EDWARD J MUIA
[ Suing on his behalf & all members of
Kimathi ESTATE WELFARE ASSOCIATION.............PLAINTIFFS
VERSUS
NAIROBI CITY COUNCIL & 4 OTHERS...................DEFENDANTS
RULING:
The Plaintiff/Applicant herein, Edward J Muia has brought this Notice of Motion dated 21st May, 2013 seeking for several Orders. The applicant has sought for these Orders;
(i) That an Order of stay to the taxation pending hearing.
(ii) The Court to set aside the Judgement.
(iii) Cost of the application.
The application was based on the grounds that the suit was dismissed on 21st May, 2006;
That the matter was listed for the hearing on 3rd May, 2013 of the taxation of a bill of cost by the 5th Defendant dated 14th December, 2012; that the applicants have instructed a new advocate to take over the matter; that the previous counsel did not notify the applicant nor keep him at abreast with what was going on.
The application was supported by the affidavit of Edward J Muia and annextures thereon. The application was opposed by the 5th Defendants Simon Kirunga Ikenye who put in his Replying Affidavit and further Affidavit. The parties herein canvassed the matter by way of Written Submissions.
I have carefully considered the Written Submissions and the pleadings herein. It is evident that the suit was dismissed on 20th December, 2006 for want of prosecution. Though the applicant alleges that he did not know of the said dismissal as his previous counsel of J.I Kuluo & Co. Advocates did not inform him, there is no evidence whether the Plaintiff took any effort to find out what was happening to his (their) matter in Court.
I will concur with the submissions for the 5th Defendant/Applicant that litigation must come to an end in one way or another. The suit was dismissed on 20th December, 2006. Plaintiffs has not taken any action to revival the suit. He only filed the instant application a day before the application for taxation was heard. That is indeed an abuse of the Court process.
The application is brought under Section 1A, & 1B of the Civil Procedure Act. The two sections deals with the overriding objective of the Act and the duty of the Court in ensuring expeditious disposal of Civil Disputes before the Court.
The instant application is meant to delay the final disposition of this matter and this is not in keeping in line with the overriding objective as envisaged by Section 1A of the Civil Procedure Act.
For the above reasons, the Court dismisses the applicant’s application dated 2/5/2013 and Orders that, the 5th Defendant’s application of the taxation of the Bill of Cost proceeds for hearing.
Application dated 2/5/2013 is dismissed with costs to the 5th Defendants herein.
It is so ordered.
Dated, Signed and delivered this 26TH day of July, 2013.
L N GACHERU
JUDGE
In the Presence of:-
.....................................................for the Applicant
......................................................for the Defendants
Anne Court Clerk
L N GACHERU
JUDGE