[2005] KEHC 1728 (KLR)
The court found that the applicants failed to provide any acceptable or credible evidence to support their claim that the court file went missing, which was their main excuse for not prosecuting the suit for over seven years. The court noted that the Registry confirmed the file was never missing and that the...
Source-derived case information.
- Citation
- [2005] KEHC 1728 (KLR)
- Parties
- Applicant: Erasto Karani Gituri & Another; Respondent: Gerald Munene Mugo
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 220 of 1986
- Procedural Posture
- Notice of Motion / Ruling on Application for Review and Reinstatement of Suit
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Review of Court Orders, Restoration of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erasto Karani Gituri & Another
Applicant
Gerald Munene Mugo
Respondent
Procedural Posture
Notice of Motion / Ruling on Application for Review and Reinstatement of Suit
Legal Issues
- 1 Whether the court should review and set aside the dismissal order dated 23rd December 1998 for want of prosecution.
- 2 Whether the suit should be restored after being dismissed for want of prosecution.
Ratio Decidendi
The court found that the applicants failed to provide any acceptable or credible evidence to support their claim that the court file went missing, which was their main excuse for not prosecuting the suit for over seven years. The court noted that the Registry confirmed the file was never missing and that the applicants and their counsel had ample opportunity to check on the status of their case. The court held that the applicants' prolonged inaction and lack of diligence did not warrant the exercise of the court's discretion to review and set aside the dismissal order. The application was found to lack merit and was dismissed, with the court emphasizing that the applicants could pursue a...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 4th February 2004 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI Civil Case 220 of 1986
ERASTO KARANI GITURI & ANOTHER…………..………….…….PLAINTIFFS Versus GERALD MUNENE MUGO……………………….……………………DEFENDANT
RULING
In this Notice of Motion dated 4th February 2004 the Applicants in prayer (a) want the court order dated 23rd December 1998 reviewed and set aside; and in prayer (b) they want the suit in this matter be restored.
The Respondent was served but did not bother to come and react to the application. I have therefore heard the application ex-parte.
The background to this application is that after filing this suit, the applicants before me now did not bother to prosecute it until it was dismissed on 23rd December 1998 for want of prosecution after pending in this court for seven years.
The Plaintiff continued to sleep until the year 2004 when he discovered the case had been dismissed.
The Plaintiff/Applicant is now trying to bring an excuse that the court case file went missing at one time. But there is no acceptable evidence concerning the alleged loss. A letter from the court Registry says that the case file never went missing.
It is after the Plaintiff had woken up in 2004 that he thought of bringing this application. Why should the Applicant and his counsel be unaware when their suit is dismissed for want of prosecution yet the Court Registry is always open for them all those years? The court had been made to believe the Applicant that he wanted the suit be determined on merits when in reality the Applicant wanted something else. He wanted delayed justice and the court gave him enough time. Seven years before this suit was dismissed. The Applicant does not therefore deserve more time and this Notice of Motion is not genuine and lacks merits. It should not stand. The rules allow the Applicant to file a fresh suit and perhaps he should have thought on those lines instead of coming back to this court with this Notice of Motion. If he encounters any problems on the way, those are problems of his own making and he should blame nobody else.
Accordingly, this Notice of Motion is hereby dismissed with no order as to costs.
Dated this 27th day of May 2005.
J. M. KHAMONI
JUDGE
Present:
Mrs. Mukuha for the Applicant.