[2025] KEHC 7846 (KLR)

In re Estate of Grace Chepkorir Koross (Deceased) (Succession Cause 202 of 2004) [2025] KEHC 7846 (KLR) (30 May 2025) (Ruling)

Neutral citation: [2025] KEHC 7846 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 202 of 2004

RN Nyakundi, J

May 30, 2025

IN THE MATTER OF THE ESTATE OF GRACE CHEPKORIR KOROSS DECEASED

Ruling

1. The Petitioners herein Jane Jepkoech Kilach And Simon Biwott Sitienei petitioned this Honourable Court for a grant of Letters of Administration intestate of the estate of the above mentioned Grace Chepkorir Koross and stated as follows:a.The said Grace Chepkorir Koross- Deceased died on the 1st of April 2004 at Kenyatta National Hospital.b.We present this petition by way of Cross Application in our capacity as mother in law and brother in law respectively.c.We will faithfully administer according to the Law all the Estate which by Law devolves and rests in the personal representative of the deceased and we will render a just and true account of such Estate whenever required by law so to do and we will when required by this court deliver up thereto the said grant.

2. I note that this matter last appeared in court on 22nd November 2004. Since then there has not been any positive steps to prosecute this suit by the parties involved.

Decision 3. The legal framework governing dismissal of proceedings for want of prosecution is well established. Order 17 Rule 2(1) of the Civil Procedure Rules provides that in any suit where no application has been made or step taken by either party for one year, the court may dismiss such suit. This provision embodies the fundamental principle that litigation must be conducted with reasonable diligence and expedition.

4. The court in Bremer Vulkan Schiffbau & Maschinenfabrik v South India Shipping Corporation Ltd (1981) 2 WLR 141 addressed the issue by accepting that the court has inherent jurisdiction in our case expressly stated in Section 3 and 3A of the Civil Procedure Act to protect itself from abuse of its processes by litigants who filed actions with no intention to prosecute them. Thus: “The high court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of Plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the Plaintiff’s choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory. So, it would stultify the constitutional role of the High Court as a court of justice if it were not armed with power to prevent it process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an “inherent power” the exercise of which is in the “inherent jurisdiction” of the High Court. It would I thin be conducive to legal clarity if it (sic) use of these two expressions were confined to the doing by the court of acts which it needs must have the power to in order to maintain its character as a court of justice.”

5. In addition, in BirkettvJames (1977) 2 ALL ER 801, the court put it this way:“To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so required (which will frequently be the case) the courts will dismiss the action. The evidence which was relied on to establish the abuse of process may be the Plaintiff’s inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James. In this case once the conclusion was reached that the reason for the delay were (Sic) one which involve abusing the process of the court in maintaining proceedings when there was no intention of carrying the case to trial the court were (sic) entitled to dismiss the proceedings.”

6. The jurisprudential principles governing dismissal for want of prosecution were comprehensively articulated in the case of Ivita v Kyumbu (1984) KLR 441, where the Court established that the test is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite such delay. This principle recognizes that justice must be administered not only to the petitioner but also to the respondents, who have a legitimate expectation that matters brought against them will be prosecuted diligently.

7. As elucidated in Mwangi S. Kimenyi v Attorney General andanother, Civil Suit Misc. No. 720 of 2009, the court must consider whether the delay has been intentional and contumelious, whether it amounts to an abuse of the court process, whether it is inordinate and inexcusable, and whether it gives rise to a substantial risk to fair trial or causes serious prejudice to the Respondents.

8. As held in Jim Rodgers Gitonga Njeru v Al-Husnain Motors Limited & 2 others [2018] eKLR, the court's duty to ensure efficient administration of justice includes ensuring that matters are prosecuted with reasonable diligence.

9. Having carefully considered the circumstances of this case, I am satisfied that this is a proper case for the exercise of this court's discretion to dismiss the suit for want of prosecution considering the full one-year period contemplated under Order 17 Rule 2(1) has elapsed. From the record, it has been 20 years 3 months since this matter was last dealt with.

10. Consequently, this suit is dismissed for want of prosecution.

11. It is so ordered.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 30 MAY 2025……………………………………R. NYAKUNDIJUDGE