[2015] KEHC 5709 (KLR)
The court found that the Plaintiff had failed to take any steps to prosecute the suit since 8.10.2008, a period far exceeding the 12 months stipulated under Order 17 Rule 1(3) of the Civil Procedure Rules (2010). The Applicant's averments were unrebutted, and the court record confirmed the prolonged inactivity. In...
Source-derived case information.
- Citation
- [2015] KEHC 5709 (KLR)
- Parties
- Plaintiff: Hayeru Masharin; Defendant: Thomas Meoly; Defendant: Margaret Meoly
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 176 of 2008
- Procedural Posture
- Notice of Motion / Ruling on Unopposed Application for Dismissal of Suit for Want of Prosecution
- Outcome
- Notice of Motion dated 24.9.2013 granted; suit dismissed for want of prosecution.
- Judges
- CM Kariuki
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Civil Procedure Rules, Transfer of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hayeru Masharin
Plaintiff
Thomas Meoly
Defendant
Margaret Meoly
Defendant
Procedural Posture
Notice of Motion / Ruling on Unopposed Application for Dismissal of Suit for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 1(3) Civil Procedure Rules (2010).
- 2 Whether the Plaintiff has taken any steps to prosecute the suit since its transfer to Machakos.
Ratio Decidendi
The court found that the Plaintiff had failed to take any steps to prosecute the suit since 8.10.2008, a period far exceeding the 12 months stipulated under Order 17 Rule 1(3) of the Civil Procedure Rules (2010). The Applicant's averments were unrebutted, and the court record confirmed the prolonged inactivity. In the absence of any opposition or explanation from the Plaintiff, the court exercised its discretion to dismiss the suit for want of prosecution, thereby granting the Notice of Motion as prayed.
Court Disposition
Notice of Motion dated 24.9.2013 granted; suit dismissed for want of prosecution.
Orders
- The Notice of Motion dated 24.9.2013 is granted in terms of prayers 1 and 2.
Full Case Text
Judgment text and source record
18 paragraphs
No.104/2015
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
ELC CASE NO.176 OF 2008
HAYERU MASHARIN ………..………..…....………………..……. PLAINTIFF
VERSUS
THOMAS MEOLY….…….……………………………..….1ST RESPONDENT
MARGARET MEOLY…..……………………….……….. 2ND RESPONDENT
R U L I N G
The Motion dated 24. 9.2013 was fixed for hearing on 10. 12. 2014. The same came for hearing and the Respondent/Plaintiff Advocate was served but did not attend court nor did the Plaintiff himself attend court. The Respondent has never filed any reply in opposition to the application since 2013 when it was lodged and served. The motion would therefore be determined as unopposed.
The Applicant case is that the instant suit was filed on 5. 7.2005 and defence was filed on 22. 7.2005. The pleadings were closed on 5. 8.05. The matter was last in court on 8. 10. 08 before Osiemo Judge when he ordered same to be transferred to Machakos for hearing and determination. Since then, the Plaintiff has never fixed matter for hearing prompting the filing of the instant motion.
The above averments are unrebutted and the court file record confirms the position as deponed. The matter was last in court on8. 10. 08. Order 17 Rule 1 (3) Civil Procedure Rules (2010) allows a party to move court for dismissal of suit where no step by either party has been taken within 12 months.
In the premises, the court makes the following orders:
The Notice of Motion dated 24. 9.2013 is granted in terms of prayers 1 and 2.
Datedand DeliveredatMachakos,this13thday ofMarch, 2015.
CHARLES KARIUKI
JUDGE