[2014] KEHC 3663 (KLR)
The court found that the application was incompetent as it lacked the mandatory chamber summons required to commence judicial review proceedings. Furthermore, the applicant failed to provide any explanation for the five-year delay in prosecuting the matter, and the responsibility for prosecuting a case lies not only...
Source-derived case information.
- Citation
- [2014] KEHC 3663 (KLR)
- Parties
- Applicant: Ephantus M. Daniel; Respondent: Land Dispute Tribunal Court, Nyahururu; Respondent: The Resident Magistrate Court, Nyahururu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 58 of 2009
- Procedural Posture
- Judicial Review / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- application dismissed for incompetence and want of prosecution
- Judges
- RPV Wendoh
- Legal Topics
- Judicial Review Dismissal, Want of Prosecution, Incompetent Application, Land Dispute Resolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ephantus M. Daniel
Applicant
Land Dispute Tribunal Court, Nyahururu
Respondent
The Resident Magistrate Court, Nyahururu
Respondent
Procedural Posture
Judicial Review / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the judicial review application should be dismissed for want of prosecution.
- 2 Whether the absence of a chamber summons renders the application incompetent.
- 3 Whether the applicant provided sufficient explanation for the delay in prosecuting the application.
Ratio Decidendi
The court found that the application was incompetent as it lacked the mandatory chamber summons required to commence judicial review proceedings. Furthermore, the applicant failed to provide any explanation for the five-year delay in prosecuting the matter, and the responsibility for prosecuting a case lies not only with counsel but also with the applicant. The court held that there was no justification for the application to remain pending on the court's record and dismissed it for incompetence and want of prosecution.
Court Disposition
application dismissed for incompetence and want of prosecution
Orders
- The judicial review application is dismissed for being incompetent and for want of prosecution.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
JUDICIAL REVIEW NO. 58 OF 2009
EPHANTUS M. DANIEL………………………...…......................APPLICANT
VERSUS
LAND DISPUTE TRIBUNAL COURT, NYAHURURU….…1ST RESPONDENT
THE RESIDENT MAGISTRATE COURT, NYAHURURU...2ND RESPONDENT
RULING
This Judicial Review application was filed way back on 22/5/2009. From that date, nothing has been done towards the prosecution of the said application. On 7/5/2014, this court took out a notice against the applicant to show cause why the application cannot be dismissed for want of prosecution.
When the notice to show cause came up for hearing, Mr. Mwangi of the firm of Lawrence Mwangi & Co. Advocates appeared and sought to file a reply. An affidavit in opposition of the application was filed in which Mr. Mwangi deponed that the pleadings were filed by Benjamin Limo Advocate, who was running his office when he was out of the Country; that he has been in USA since 2009 and was not aware of the matter; that he returned on 11/3/2014 and the notice to show cause was served on his firm. He further deposed that Mr. Limo left his firm to start his own in Eldoret and did not do proper hand over and that the mistakes of Mr. Limo should not be visited on the applicant.
I have duly considered this application. A Judicial Review application is first made by way of a chamber summons accompanied by a statement of facts and a verifying affidavit seeking leave of the court to commence judicial review proceedings. On the file before me, there is no chamber summons application. There is only a statement of facts and verifying affidavit on record and hence no application.
This application was filed on 22/5/2009, 5 years ago. Despite the by the counsel that it is another advocate who filed it when he was away, yet there is no explanation from the applicant himself as to why he has not done due diligence to find out what happened to his case. The responsibility does not lie with the advocate alone, challenging a decision giving his land to another party. Why would that challenge to the decision lie dormant five years without any action. Without the applicant’s explanation as to what he had done towards ensuring that this application is heard, I find no good reason why this incomplete and incompetent application should remain in the court’s records as a pending case. In the end, the application is hereby dismissed for being incompetent and for want of prosecution.
DATED and DELIVERED this 18th day of July, 2014.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Oumo holding brief for Mr. Mwangi for the applicant
N/A for the respondents
Kennedy – Court Assistant