[2014] KEHC 4229 (KLR)
The court found that after the interlocutory ruling on 15th May, 2012, the petitioners took no steps to prosecute the petition for over a year. The applicant exercised its right to seek dismissal for want of prosecution, and the petitioners, despite being notified, failed to respond or show cause. The court held...
Source-derived case information.
- Citation
- [2014] KEHC 4229 (KLR)
- Parties
- Petitioner: Francis Ngigi Macharia & 66 Others; Respondent: National Environmental Management Authority
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Petition 36 of 2011
- Procedural Posture
- Constitutional Petition / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- petition dismissed for want of prosecution
- Judges
- LN Mutende
- Legal Topics
- Dismissal for Want of Prosecution, Right to Be Heard, Fundamental Rights, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ngigi Macharia & 66 Others
Petitioner
National Environmental Management Authority
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the petition should be dismissed for want of prosecution after more than one year of inactivity.
- 2 Whether the petitioners have lost interest in prosecuting the suit.
Ratio Decidendi
The court found that after the interlocutory ruling on 15th May, 2012, the petitioners took no steps to prosecute the petition for over a year. The applicant exercised its right to seek dismissal for want of prosecution, and the petitioners, despite being notified, failed to respond or show cause. The court held that the continued pendency of the petition without action was unjustified and that the applicant was entitled to relief. Accordingly, the petition was dismissed for want of prosecution, and costs were awarded to the applicant.
Court Disposition
petition dismissed for want of prosecution
Orders
- The petition dated 13th February 2012 is dismissed for want of prosecution.
- The applicants/respondents are awarded costs of the application and the petition.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
PETITION 36 OF 2011
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 40(1) (A) AND (B) OF THE KENYAN CONSTITUTION
AND
IN THE MATTER OF ARTICLES 22, 23, 159, 160 AND 165 OF THE CONSTITUTION
IN THE MATTER OF GENERAL TRANSITIONAL AND CONSEQUENTIAL PROVISIONS
BETWEEN
FRANCIS NGIGI MACHARIA & 66 OTHERS ………………………………………………...PETITIONERS/RESPONDENTS
VERSUS
NATIONAL ENVIRONMENTAL
MANAGEMENT AUTHORITY…….........................................................................................…..RESPONDENT/APPLICANT
RULING
The notice of motion dated 23rdday of October, 2013 is brought pursuant to the provisions of Section 1A, 1B and 3A of the Civil Procedure Act, Order 17 Rules 2(1), (3) of the Civil Procedure Rules, 2010.
In the application the applicant/respondent seeks an order dismissing the petition dated the 13th February 2012 for want of prosecution.
It is premised on grounds that it is over one (1) year since the petitioner or any other party has taken any step towards prosecution of the suit; and judging from the interlocutory ruling issued in this matter on the 15th May, 2012, the petitioner has lost interest in the suit.
An affidavit in support of the application is deposed by Erastus K. Gitonga the advocate in conduct of the applicant’s case who states inter alia that no action has been taken by the petitioner to set down the case for hearing. That the applicant has attempted to prompt the petitioner to set the matter down for hearing in vain and the presence of the petition serves to encumber the applicant with anxiety.
The application is unopposed.
It is trite law that a suit having been instituted must be heard. This is a case where upon institution of the suit the respondent sought issuance of injunctive orders that were declined. After the ruling was granted on the 15thMay, 2012, the petitioners took no step to have the matter heard. When a year lapses before a suit is heard any party may apply for its dismissal. The applicant having exercised that right, and the respondent/petitioner on being notified having failed to respond, this case must be dismissed and it is so ordered.
The applicants/respondents will have costs of the application and the petition.
DATED, SIGNED and DELIVEREDat MACHAKOS this 12THday of JUNE, 2014
L.N. MUTENDE
JUDGE