[2007] KEHC 594 (KLR)
The court found that the Chamber Summons seeking dismissal of the Notice of Motion did not conform with the Civil Procedure Rules and was therefore struck out. However, the court expressed concern over the applicant's inordinate delay in prosecuting the substantive Notice of Motion for judicial review. The court...
Source-derived case information.
- Citation
- [2007] KEHC 594 (KLR)
- Parties
- Applicant: Grace Eshipwaka; Respondent: The Attorney General on behalf of Butere L.D.T.; Interested Party: Michael Okusimba Nyende
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 10 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Dismiss Notice of Motion
- Outcome
- Chamber Summons seeking dismissal struck out for non-compliance with rules; Notice of Motion to be fixed for hearing on priority.
- Legal Topics
- Judicial Review, Certiorari, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Eshipwaka
Applicant
The Attorney General on behalf of Butere L.D.T.
Respondent
Michael Okusimba Nyende
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application to Dismiss Notice of Motion
Legal Issues
- 1 Whether the Chamber Summons seeking dismissal of the Notice of Motion for judicial review is compliant with the Civil Procedure Rules.
- 2 Whether the inordinate delay in prosecuting the Notice of Motion warrants dismissal or other orders.
Ratio Decidendi
The court found that the Chamber Summons seeking dismissal of the Notice of Motion did not conform with the Civil Procedure Rules and was therefore struck out. However, the court expressed concern over the applicant's inordinate delay in prosecuting the substantive Notice of Motion for judicial review. The court declined to dismiss the main application at this stage due to the procedural defect in the dismissal application but directed that the Notice of Motion be fixed for hearing on a priority basis, signaling that further delay would not be tolerated.
Court Disposition
Chamber Summons seeking dismissal struck out for non-compliance with rules; Notice of Motion to be fixed for hearing on priority.
Orders
- The Chamber Summons seeking dismissal of the Notice of Motion is struck out.
- The Notice of Motion is to be fixed for hearing on a priority basis early next year.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
MISC CIV APPLI 10 OF 2003
GRACE ESHIPWAKA ……………………………………….... APPLICANT
V E R S U S
THE ATTORNEY GENERAL
On behalf of BUTERE L.D.T. …………………..……...…. RESPONDENT
A N D
MICHAEL OKUSIMBA NYENDE ….………………INTERESTED PARTY
R U L I N G
Michael Okusimba Nyende, the interested party, filed an application on 8-6-06 seeking dismissal of the Notice of Motion dated 3-2-2003 which was filed under Rule 3 of Order LIII seeking orders for judicial review to wit certiorari. The application has not been prosecuted for more than 4 ½ years but it did come up for hearing on 10-2-1004 when it could not be reached, and on 27-11-2006.
The Chamber Summons does not conform with the Rules of the Civil Procedure Rules and for that reason I strike it out. It does jolt into action the exparte applicant, Grace Eshipwaka, who has been in a slumber to prosecute the Notice of Motion. Although I strike it out, I express concern over the inordinate delay in the prosecution of the Notice of Motion. I direct that the Notice of Motion be fixed for hearing on priority early next year
Delivered, dated and signed at Kakamega this 8th day of November, 2007
G. B. M. KARIUKI
J U D G E