[2015] KEHC 3165 (KLR)
The court found that the plaintiff had failed to serve the 2nd and 3rd defendants since the filing of the plaint and had not applied for extension of the expired summons. The plaintiff admitted to not serving the 2nd defendant and provided no satisfactory explanation for the delay or inactivity for over one year....
Source-derived case information.
- Citation
- [2015] KEHC 3165 (KLR)
- Parties
- Plaintiff: Edward Wafula Wafubwa; Defendant: Moses Nyongesa Muresia; Defendant: George Muresia; Defendant: Land Registrar Bungoma
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 6 of 2014
- Procedural Posture
- Environment and Land Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- SN Mukunya
- Legal Topics
- Dismissal for Want of Prosecution, Service of Summons, Delay in Prosecution, Abatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Wafula Wafubwa
Plaintiff
Moses Nyongesa Muresia
Defendant
George Muresia
Defendant
Land Registrar Bungoma
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inactivity for over one year.
- 2 Whether failure to serve the 2nd and 3rd defendants and to apply for extension of summons warrants dismissal of the suit.
Ratio Decidendi
The court found that the plaintiff had failed to serve the 2nd and 3rd defendants since the filing of the plaint and had not applied for extension of the expired summons. The plaintiff admitted to not serving the 2nd defendant and provided no satisfactory explanation for the delay or inactivity for over one year. The court held that the unexplained delay and lack of action demonstrated a lack of interest in prosecuting the suit. In accordance with Order 5 of the Civil Procedure Rules, the court determined that the suit should be dismissed for want of prosecution, with each party to bear its own costs.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT & LAND CASE NO.6 OF 2014
EDWARD WAFULA WAFUBWA………………………..…………PLAINTIFF
VERSUS
MOSES NYONGESA MURESIA………………....…….1ST DEFENDANT
GEORGE MURESIA………………………………...……2ND DEFENDANT
LAND REGISTRAR BUNGOMA………………………………………3RD DEFENDANT
RULING
The applicant brings this notice of motion praying that the suit filed on 9th January 2014 be dismissed for want of prosecution. The applicant argues that it is over one year since the suit was filed and no step has been taken to have the suit fixed for hearing. That the plaintiff has clearly demonstrated lack of interest in this suit.
The respondent in his reply in Court through his Counsel Mr. Wamalwa, pleaded to be given time to serve the 2nd defendant herein. Mr. Wamalwa said that they have looked for the second defendant and have not found him.
In reply Mr. Onyando learned Counsel for the applicant argued that the pleadings have closed. That no cause has been shown as to why there is no service. That there has been no application for extention of summons. That the said summons have expired after the expiry of one year since they were issued. He argued the Court to dismiss the case.
I have carefully considered the application by the defendant applicant. I have also considered the reply by the respondent plaintiff.
There is no doubt that since the plaint was filed, there has been no service to the 2nd defendant at all. This fact has been admitted by the Plaintiff.
Order 5(6) of the Civil Procedure Rules provides
“Every summons, except where the Court is to effect service, shall be collected for service within 30 days of issue or notification, whichever is later, failing which the suit shall abate”
2. (1)
The validity of the summons in this case has expired. There has been no application to extend the same made in Court.
There is no prove at all that the 3rd defendant has been served at all.
I am afraid there has been an unexplained delay in service of summons, in this case, there has equally been unactivity on the part of the plaintiff for a period of over one year.
I am not convinced that the plaintiff is still interested in this suit.
I dismiss the suit and order that each party bears its own costs.
Dated at BUNGOMA this……23RD…………day of……JULY…………………2015
S. MUKUNYA
JUDGE