[2012] KEHC 1581 (KLR)
The court found that the defendant's application to dismiss the suit for want of prosecution was premature because the suit was not ready for hearing. The necessary preliminary steps, including the exchange of witness statements, exhibits, and settlement of issues, had not been undertaken as required by the Civil...
Source-derived case information.
- Citation
- [2012] KEHC 1581 (KLR)
- Parties
- Plaintiff: Eunice Aketch Okumu (suing on her behalf and estate of the late Wekulo Saisi); Defendant: Evans Wanyama Juma
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 64 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Dismissal for Want of Prosecution, Land Sale Agreements, Fraudulent Transfer of Land, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Aketch Okumu (suing on her behalf and estate of the late Wekulo Saisi)
Plaintiff
Evans Wanyama Juma
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 rule 3 of the Civil Procedure Rules.
- 2 Whether the application for dismissal was prematurely brought before the suit was ready for hearing.
Ratio Decidendi
The court found that the defendant's application to dismiss the suit for want of prosecution was premature because the suit was not ready for hearing. The necessary preliminary steps, including the exchange of witness statements, exhibits, and settlement of issues, had not been undertaken as required by the Civil Procedure Rules. Therefore, the application lacked merit and was dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs
Orders
- The application to dismiss the suit for want of prosecution is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
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EUNICE AKETCH OKUMU (suing on her behalf and estate of the late WEKULO SAISI...............................PLAINTIFF
~VRS~
EVANS WANYAMA JUMA.......................................................................................................................................DEFENDANT
RULING
On 6/7/2010 the Plaintiff (suing on behalf of the estate the deceased Wekulo Saisi) brought this suit against the Defendant who on 18/3/2001 bought 2. 20 Hectares of the deceased’s 7. 64 Hectares comprised in land parcel no.E.Bukusu/E.Sang’alo/1632 for Ksh.325,000/=. He claimed that by the time the deceased died the transaction was incomplete as the full purchase price had not been paid and the consent of the Land Control Board had not been obtained. Yet, after the death the Defendant had fraudulently proceeded to have the land subdivided and the portion transferred and registered in his name. The suit sought the cancellation of the registration. The Defendant denied the claim. He admitted having entered into the transaction with the deceased but denied that the transaction was incomplete by the time the deceased died. He denied defrauding the deceased or the estate of the land.
On 2/3/2012 the Defendant brought the present application under Order 17 rule 3 of the Civil Procedure Rules to have the suit dismissed with costs for want of prosecution on the ground that for 1 ½ years the Plaintiff has not set down the suit for hearing. I agree with the Plaintiff that the application was prematurely brought. The suit was not ready for hearing. Preliminary steps under Order 3 rule 2 and Order 11 had not been undertaken. Parties had not exchanged witness statements and exhibits/documents and issues had not been settled, etc. The application has no merit and is dismissed with costs.
Dated, signed and delivered at Bungoma this 1st day of October, 2012.
A.O. MUCHELULE
JUDGE