[2021] KEHC 12805 (KLR)
The court found that the applicant's claim of inordinate delay was unfounded because the direction to set the matter for hearing was only given on 2nd December 2020, and the application to dismiss was filed shortly thereafter. The court held that time for prosecution began to run from the date of the court's...
Source-derived case information.
- Citation
- [2021] KEHC 12805 (KLR)
- Parties
- Applicant: Geoffrey Richu; Respondent: Samuel Kinyanjui; Respondent: Edward Ndungu; Respondent: Peter Kiambuthi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 673 of 1990
- Procedural Posture
- Succession Cause / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed with costs to the applicant
- Judges
- AO Muchelule
- Legal Topics
- Succession, Grant of Letters of Administration, Distribution of Estate, Want of Prosecution, Dismissal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Richu
Applicant
Samuel Kinyanjui
Respondent
Edward Ndungu
Respondent
Peter Kiambuthi
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the application dated 2nd June 2017 should be dismissed for want of prosecution.
- 2 Whether the delay in prosecuting the application was inordinate and inexcusable.
- 3 Whether the applicant would be prejudiced if the application is not dismissed.
Ratio Decidendi
The court found that the applicant's claim of inordinate delay was unfounded because the direction to set the matter for hearing was only given on 2nd December 2020, and the application to dismiss was filed shortly thereafter. The court held that time for prosecution began to run from the date of the court's direction, not before. The court further emphasized that the application related to the serious matter of distribution of the deceased's estate, and in the interests of justice, the substantive application should be heard on its merits. Therefore, the application to dismiss for want of prosecution was dismissed, but the applicant was awarded costs.
Court Disposition
application dismissed with costs to the applicant
Orders
- The application dated 10th December 2020 is dismissed.
- The applicant will be paid costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 673 OF 1990
GEOFFREY RICHU.....................................................APPLICANT
VERSUS
SAMUEL KINYANJUI........................................1ST RESPONDENT
EDWARD NDUNGU………………….….…….2ND RESPONDENT
PETER KIAMBUTHI.........................................3RD RESPONDENT
RULING
1. The application dated 2nd June 2017 by the respondents Samwel Kinyanjui, Edward Ndungu and Peter Kiambuthi against the applicant Geoffrey Richu sought the cancelation and nullification of the subdivisions in respect of Dagoretti/Kinoo/600. This was one of the land parcels owned by the deceased Joseph Gitau Richo who died intestate on 20th December 1985. The grant of letters of administration intestate was issued to the applicant on 7th August 1990 and confirmed on 15th November 1991. The parcel was supposed to be shared equally among the parties herein. The application was heard by Justice M.W. Muigai who granted prayers 2 and 3 on interim basis. She asked that the matter be heard interpartes. On 2nd December 2020 I asked the parties to take a date in the registry for the hearing of that application.
2. Instead, the applicant filed an application dated 10th December 2020 seeking to have the application dated 2nd June 2017 dismissed with costs for want of prosecution. This was on the grounds that the respondents had for over three years failed to set the application down for hearing; that the failure to set down the application for hearing was inordinate, inexcusable and an abuse of the process of the court; and that the dismissal would relieve the applicant of the burden of having the matter hanging around his neck.
3. The application was served but received no response.
4. Parties were in court on 2nd December 2020 when it was directed that–
“the parties should take a date at the registry for interparte hearing of the application.”
The application was a defended one. Instead of the applicant going to the registry to take a hearing date, he, in the same month, sought the dismissal of the matter for want of prosecution. I find that this was mischievous. Time begun to run on 2nd December 2020. It is not true that no action had been taken in three years.
5. A decision to dismiss a suit for want of prosecution should not be taken lightly. The application should show that the delay complained of was inordinate; that the delay was inexcusable; that the applicant will be prejudiced if the suit is not dismissed; and that sustaining the suit to have it determined on its own merits would not be a fair and just action in the circumstances (Argan Wekesa Okumu –v- Dima College Limited & 2 Others ]2015]eKLR.
6. I consider that the application dated 2nd June 2017 related to the serious matter concerning the distribution of the estate of the deceased. In the wider interests of justice, I direct that the application be heard on 9th June 2021. The application dated 10th December 2020 is dismissed, but the applicant will be paid costs.
DATED and DELIVERED NAIROBI this 19TH day of APRIL 2021.
A.O. MUCHELULE
JUDGE