[2012] KEHC 755 (KLR)
The court found that the plaintiff/applicant had failed to prosecute the application dated 26/7/2010 since its filing, despite being served with hearing notices and invitations to fix hearing dates. The absence of the plaintiff/applicant and their counsel on the hearing date, without explanation, demonstrated a lack...
Source-derived case information.
- Citation
- [2012] KEHC 755 (KLR)
- Parties
- Plaintiff: Harun Gachie Mahianyu; Defendant: The Good Shepherd Church Komarock Nairobi (A Branch of the Anglican Church)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 356 of 2010
- Procedural Posture
- Chamber Summons / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed for want of prosecution with costs to the defendant
- Judges
- LN Gacheru
- Legal Topics
- Dismissal for Want of Prosecution, Service of Process, Interim Orders, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harun Gachie Mahianyu
Plaintiff
The Good Shepherd Church Komarock Nairobi (A Branch of the Anglican Church)
Defendant
Procedural Posture
Chamber Summons / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff/applicant has prosecuted the application dated 26/7/2010 diligently.
- 2 Whether the application should be dismissed for want of prosecution.
Ratio Decidendi
The court found that the plaintiff/applicant had failed to prosecute the application dated 26/7/2010 since its filing, despite being served with hearing notices and invitations to fix hearing dates. The absence of the plaintiff/applicant and their counsel on the hearing date, without explanation, demonstrated a lack of interest in pursuing the application. The defendant/respondent had shown diligence by repeatedly seeking to have the matter heard. The court concluded that the continued inactivity by the plaintiff/applicant justified dismissal of the application for want of prosecution, and accordingly granted the defendant's prayer for dismissal with costs.
Court Disposition
application dismissed for want of prosecution with costs to the defendant
Orders
- The application dated 26/7/2010 is dismissed for want of prosecution.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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HARUN GACHIE MAHIANYU …....................................PLAINTIFF/APPLCIANT
VERSUS
THE GOOD SHEPHERD CHURCH KOMAROCK
NAIROBI (A BRANCH OF THE ANGLICAN CHURCH)..................DEFENDANT
RULING
The Plaintiff/Applicant herein Harun Gachie Mahianyu brought this suit to court on 26/7/2010. He further filed a chamber summons on the even date under Certificate of Urgency.
Interim orders were granted in respect of prayers (b) (c) & (d) and matter set for interpartes hearing on 5/8/2010.
I have perused the file and noted that from 5/8/2010, the chamber summons dated 26/7/2010 has never been heard due to several reasons. Interim orders have been extended severally. On 20/9/2012, the Defendant counsel herein invited the Plaintiff counsel, Mutitu Thiongo & Co. Advocates for fixing of hearing date on 2/10/2010. The letter of invitation was receipted in the office of Mutitu, Thiongo & Co. Advocates on 25/9/2012 as per the return of service filed in court on 19/11/2012.
From the court records, the applicant's representatives were not in court for fixing of hearing date.
The Defendant fixed the matter for hearing of application dated 26th July, 2010 on 19th November, 2012.
Further the Defendant/respondent served a hearing notice to the plaintiff/applicant advocates on 9/10/2012 as per the attached hearing notice on the return of service sworn by the process server one Stanley K. Kimani.
Today 19/11/2012, when the matter came up for hearing, the plaintiff/applicant and/or their counsels were not present in court. No reasons were given for their absence.
It is evident that a hearing notice was served on the firm of Mutitu, Thiong'o & Co. Advocates on 9/10/2010.
The application herein was filed by the plaintiff/applicant herein and interim orders granted. Plaintiff/Applicant have not prosecuted the application since 26/10/2010.
Plaintiff might have lost interest in the suit.
The defendant counsel has shown interest in the matter as he has severally invited the plaintiff Counsel for fixing of hearing dates.
The defence has applied for the dismissal of the chamber summons dated 26/7/2010 with costs to the Defendant for want of prosecution. I will not hesitate to grant the Defendants prayer as it is very clear that plaintiff/applicant has not shown any eagerness in having this application dated 26/7/2010 disposed off.
Consequently the court allows the Defendant's prayer and dismiss the application dated 26/7/2010 with costs to the Defendants.
Dated, signed and delivered this 20th day of November, 2012
L.N. GACHERU
JUDGE
In the Presence of:
….............................................for the Applicant
…..........................................for the Defendants
…....................................................Court Clerk