[2012] KEHC 4492 (KLR)
The court found that the application to dismiss for want of prosecution was brought under Order XVI Rules 5 (a), (c), and (d) and Order L of the old Civil Procedure Rules, which had been revoked by Order 54 Rule 1 of the Civil Procedure Rules, 2010. Since the application relied on non-existent legal provisions, the...
Source-derived case information.
- Citation
- [2012] KEHC 4492 (KLR)
- Parties
- Applicant: Andrew Njogu Gachoka; Respondent: Respondent (unnamed)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 683 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Motion to Dismiss for Want of Prosecution
- Outcome
- application struck out for want of jurisdiction
- Judges
- CM Njagi
- Legal Topics
- Dismissal for Want of Prosecution, Jurisdiction, Applicability of Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Njogu Gachoka
Applicant
Respondent (unnamed)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the application to dismiss for want of prosecution is competent given the legal basis cited.
- 2 Whether the court has jurisdiction to entertain an application brought under revoked rules.
Ratio Decidendi
The court found that the application to dismiss for want of prosecution was brought under Order XVI Rules 5 (a), (c), and (d) and Order L of the old Civil Procedure Rules, which had been revoked by Order 54 Rule 1 of the Civil Procedure Rules, 2010. Since the application relied on non-existent legal provisions, the court held that it lacked jurisdiction to hear and determine the matter. The principle that jurisdiction is everything was emphasized, and without it, the court cannot proceed. Consequently, the application was struck out for want of jurisdiction. No order as to costs was made due to the respondent's non-participation.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application dated 21st October, 2011 is struck out.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE MATTER OF THE ESTATE OF MBUGUA NGANGA
(DECEASED)
R U L I N G
This application is brought by a Notice of Motion dated 21st October, 2011 and taken out under Order XVI Rules 5 (a), (c)and(d), and Order L of the Civil Procedure Act. It seeks orders that –
1. The Respondent’s application dated 3rd of March, 2011 be dismissed for want of prosecution.
2. The costs of this application be provided for.
The application is supported by the annexed affidavit of Andrew
Njogu Gachoka, Advocate, and is based on the grounds that –
(a)A period of six months has lapsed since the application was filed and no steps have been taken to fix the same for hearing.
(b)The delay is inordinate and inexcusable.
(c)It is in the wider interest of justice that the said orders are granted.
At the hearing of the application, Mr. Gachoka for the Applicant
submitted that the Applicant was not opposed as the Respondent had not filed any replying affidavit.
On the other hand, Ms. Mburugu holding brief for Mr. Etemesi for the Respondent told the Court that her instructions were that the Respondent’s Advocates are unable to get in touch with their client. Mr. Etemesi has since left “the Organisation” (i.e. the firm of Advocates for the Respondent, I presume) and the firm needs time to get in touch with their client.
In his reply, Mr. Gachoka argued that the same person who filed the application is the same one who is not available for service. His unavailability is just perpetuating a situation which blocks any movement forward. Counsel then submitted that the best solution was to strike out the application.
After considering the positions taken by the respective Counsel, I note that this application is brought under Order XVI Rules 5 (a), (c)and (d) and Order L of the oldCivil Procedure Rules. Those Rules were revoked under Order 54 Rule 1 of the new Civil Procedure Rules, 2010, which came into force on 17th December, 2010. ThatRule simply stipulates that “the Civil Procedure Rules are revoked”. Consequently, this application is brought under rules which are non existent, and therefore the Court lacks the requisite jurisdiction to hear and determine the application.
Jurisdiction is everything, and without it, the Court lacks the power to deal with the matter before it. The application is accordingly struck out. However, since the Respondent did not react to the application, there will be no order as to costs.
It is so ordered.
DATEDand DELIVERED at NAIROBI this 26th day of April, 2012.
L. NJAGI
JUDGE