[2012] KEHC 3122 (KLR)
The court held that the motion dated 4/6/2010 could not be dismissed for want of prosecution because it was not the matter fixed for hearing on the material date. Instead, the preliminary objection by the 4th Respondent was the matter scheduled for hearing, and it was incumbent upon the 4th Respondent to prosecute...
Source-derived case information.
- Citation
- [2012] KEHC 3122 (KLR)
- Parties
- Applicant: Felix Nyongesa Mutunguti; Respondent: The Land Disputes Tribunal Kanduyi Division; Respondent: The Chief Magistrate Bungoma; Respondent: The Attorney General; Respondent: Nicholas Makhanu Mukhwana
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 78 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Application for Dismissal for Want of Prosecution
- Outcome
- Request to dismiss the motion for want of prosecution declined; directions given for further hearing.
- Judges
- AO Muchelule
- Legal Topics
- Preliminary Objection, Dismissal for Want of Prosecution, Judicial Review, Land Disputes Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Felix Nyongesa Mutunguti
Applicant
The Land Disputes Tribunal Kanduyi Division
Respondent
The Chief Magistrate Bungoma
Respondent
The Attorney General
Respondent
Nicholas Makhanu Mukhwana
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the motion dated 4/6/2010 could be dismissed for want of prosecution when it was not the matter fixed for hearing.
- 2 Whether the preliminary objection by the 4th Respondent should have been prosecuted instead of seeking dismissal of the motion.
Ratio Decidendi
The court held that the motion dated 4/6/2010 could not be dismissed for want of prosecution because it was not the matter fixed for hearing on the material date. Instead, the preliminary objection by the 4th Respondent was the matter scheduled for hearing, and it was incumbent upon the 4th Respondent to prosecute that objection. The request to dismiss the motion for want of prosecution was therefore declined. The court directed the 4th Respondent to take a hearing date for the motion, serve the parties, and raise the objection at the appropriate time during the hearing. No order as to costs was made due to the applicant's non-attendance.
Court Disposition
Request to dismiss the motion for want of prosecution declined; directions given for further hearing.
Orders
- The request to dismiss the motion dated 4/6/2010 for want of prosecution is declined.
- Mr. Makali to take a date for the motion, serve, and respond and raise the objection at the hearing.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT BUNGOMA
Miscellaneous Application 78 of 2010
FELIX NYONGESA MUTUNGUTI................................................................................................APPLICANT
~VRS~
THE LAND DISPUTES TRIBUNALKANDUYI DIVISION.................................................1ST RESPONDENT
THE CHIEF MAGISTRATEBUNGOMA..............................................................................2ND RESPONDENT
THE ATTORNEY GENERAL................................................................................................3RD RESPONDENT
NICHOLAS MAKHANU MUKHWANA............................................................................. 4TH RESPONDENT
RULING
What was fixed to be heard on 5/6/2012 was the preliminary objection dated 19/7/2010 by the 4th Respondent. The hearing notice was served on the ex-parte Applicant’s advocates who did not attend. Mr. Makali for the 4th Respondent then sough that the motion dated 4/6/2010 be dismissed for want of prosecution. The motion sought the award of the 1st Respondent as adopted by the 2nd Respondent be removed into the court and quashed. The 4th Respondent had complained to the 1st Respondent regarding land parcel E. Bukusu/S.Kanduyi/685 (as subdivided into parcels E.Bukusu/S.Kanduyi/5734 – 5739) be re-subdivided. The decision had aggrieved the ex-parte Applicant, hence the application.
The motion was not the one fixed for hearing and therefore could not be dismissed for want of prosecution. Mr. Makali ought to have prosecuted the objection. The request to dismiss the motion for want of prosecution is consequently declined.
I ask Mr. Makali to take a date for the motion and to serve and during the hearing he can respond and at the same time raise the objection. Since the ex-parte Applicant did not attend, I make no orders as to costs.
Dated, signed and delivered at Bungoma this 11th day of July 2012
A.O. MUCHELULE
JUDGE