[2006] KEHC 1880 (KLR)
The court found that the respondent in the application (the applicant in the original action) had failed to take any steps to prosecute the suit for over one and a half years without explanation. The court emphasized that while land matters are sensitive and courts should be cautious before denying access to...
Source-derived case information.
- Citation
- [2006] KEHC 1880 (KLR)
- Parties
- Applicant: John Gitobu Rukwaru; Respondent: Aritho Igweta; Respondent: Meru North District Land Adjudication Officer
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 38 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application allowed; suit dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Judicial Review, Abuse of Process, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gitobu Rukwaru
Applicant
Aritho Igweta
Respondent
Meru North District Land Adjudication Officer
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction by the applicant.
- 2 Whether the court has inherent jurisdiction to dismiss a judicial review application for abuse of process.
- 3 Whether procedural defects in the notice of motion warrant striking out the application.
Ratio Decidendi
The court found that the respondent in the application (the applicant in the original action) had failed to take any steps to prosecute the suit for over one and a half years without explanation. The court emphasized that while land matters are sensitive and courts should be cautious before denying access to justice, litigants must demonstrate interest in pursuing their cases. The court held that it has inherent jurisdiction to prevent abuse of process, even in judicial review matters, and that the unexplained inaction amounted to disinterest. Additionally, the court noted that the notice of motion was procedurally defective and would have been struck out if heard on merits. Consequently,...
Court Disposition
application allowed; suit dismissed for want of prosecution
Orders
- The application dated 12.7.2005 is allowed as prayed.
- The suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Misc Civ Appli 38 of 2003
IN THE MATTER OF AN APPLICATION FOR ORDERS OF MANDAMUS CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF MERU NORTH DISTRICT LAND ADJ. OFFICE DECISION (UNDER CAP 284)
BETWEEN
JOHN GITOBU RUKWARU…………………................................…....…………………APPLICANT
V E R S U S
ARITHO IGWETA…………………………………......................………………..1ST RESPONDENT
MERU NORTH DISRICT LAND ADJUDICATION OFFICER…...............….2ND RESPONDENT
R U L I N G
1. The Application dated 12. 7.2005 seeks orders under XVI Rule 5 of the Civil Procedure Rules that the suit herein be dismissed for want of prosecution.
2. It is the case by the Applicant that since 1. 7.2003 when the originating summons was adjourned at the instance of the Applicant, no step was ever taken again to have the suit heard and finally determined. That since the delay in doing so has not been explained, and then the suit ought to be dismissed for want of prosecution.
3. I have seen the Replying Affidavit of Elijah Ogoti Advocate on behalf of the Applicant in the original action. It attempts to shift responsibility for pressing the suit forward to the Applicant now before court. It is however, also admitted that no action has been taken since 15. 9.2004, a period of more than 1 ½ years before the filing of the Application. No explanation for inaction during that period has been given.
4. Granted, this is a matter involving land and court ought always to consider the sensitive nature of land before closing the path of justice to a party. However, even then, a party that is clearly uninterested in pursuing his cause cannot accept a court of Justice to aid his disinterest. That is the position of the Respondent in this Application. If he chooses to sleep, as he has, the court will turn its judicial eye to a litigant who chooses not to sleep, like the Applicant in this case. I am aware that this is an Application for Judicial Review orders but I am still convinced that where a party brings an action and then goes to sleep because he has orders of stay of a decision, this court has inherent jurisdiction to do what it must do to ensure that the court process is not abused. Even if Order XVI Rule 5 of the Civil Procedure Rules does not apply, this court still has the power to stop abuse of its process. I should only also note in passing that the Notice of Motion dated 28. 3.2003 is so procedurally defective that had it gone for full hearing it would have been struck off because of those defects. The motion for these reasons cannot stand and must be quickly put to rest.
5. The Application dated 12. 7.2005 is with merit and is allowed as prayed.
6. Costs of the now dismissed action shall be paid by the Respondent to the 1st Respondent only.
7. Orders accordingly.
DATED SIGNED AND DELIVERED AT MERU THIS 4th DAY OF JULY 2006
ISAAC LENAOLA,
J U D G E
In the Presence of
Mr. Mwangi Advocate for the Applicant.
Mr. Nyaboga holding brief for Mr. Ogoti Advocate for the Respondent .
ISAAC LENAOLA
JUDGE.