[2004] KEHC 2010 (KLR)
The court found that the application for dismissal for want of prosecution was procedurally defective because there was no evidence that the 2nd plaintiff had been served with the application. Proper service on all parties is a prerequisite for the hearing of such an application. As a result, the proceedings of...
Source-derived case information.
- Citation
- [2004] KEHC 2010 (KLR)
- Parties
- Plaintiff: Joseph Mutavuta Kinyua; Defendant: Paul K. Chemweno
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 198 of 1998
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- No ruling delivered on the merits due to improper service; parties advised to withdraw application or settle.
- Judges
- JW Gacheche
- Legal Topics
- Dismissal for Want of Prosecution, Service of Process, Order Xvi Rule 5, Notice of Motion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mutavuta Kinyua
Plaintiff
Paul K. Chemweno
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order XVI rule 5 of the Civil Procedure Rules.
- 2 Whether all necessary parties were properly served prior to the hearing of the application.
Ratio Decidendi
The court found that the application for dismissal for want of prosecution was procedurally defective because there was no evidence that the 2nd plaintiff had been served with the application. Proper service on all parties is a prerequisite for the hearing of such an application. As a result, the proceedings of 15.7.2003, during which submissions were made in the absence of the 2nd plaintiff, were improper. The court declined to deliver a ruling on the merits of the application and left it to the parties to consider withdrawing the application or settling the matter appropriately.
Court Disposition
No ruling delivered on the merits due to improper service; parties advised to withdraw application or settle.
Orders
- No ruling delivered on the application for dismissal for want of prosecution.
- Parties to consider withdrawing the application or settling the matter.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CIVIL SUIT NO. 198 OF 1998
JOSEPH MUTAVUTA KINYUA…………………………………………………….PLAINTIFF
VERSUS
PAUL K. CHEMWENO……………………………………………………….……….DEFENDANT
RULING.
This application which was brought to court on 9. 4.2003 by way of a Notice of Motion was heard by the Hon. Justice Omondi Tunya on 15. 7.2003, and though he deffered his ruling, it was not delivered and upon request by counsels, I decided to peruse the proceedings and prepare the ruling. The applicant, who is the 2nd defendant herein, seeks an order for the dismissal of the suit, for want of prosecution.
The application was brought under orders XVI rule 5 of the Civil Procedure Rules. It does not specifically state which particular sub-rule it has been brought under. However Order XVI rule 5 stipulates that
“If, within three months after -
(a) the close of pleadings; or
(b) the removal of the suit from the hearing list; or
(c) the adjournment of the suit generally, the plaintiff, or the court of its own motion on notice to the parties, does not set down the suit for hearing, the defendant may either set the suit down for hearing or apply for its dismissal.”
One of the conditions, prerequisite for the hearing of this type of an application, is that all parties be served prior to the date of hearing.
I have noted that the 1st plaintiffs counsel was served on 10. 4.2003. however, there is no evidence that the 2nd plaintiff was ever served.
I do therefore find that the matter should not have proceeded in the absence of the 2nd plaintiff. Therefore the proceedings of 15. 7.2000 were not proper as the honourable Judge allowed the applicants to make submissions in the belief that service had been effected on the 2nd respondent, a fact which had been erroneously confirmed by counsel for the 1st defendant.
I am therefore unable to deliver the expected ruling and it is up to the parties to consider withdrawing their earlier application, or settling the matter in the most appropriate manner.
Dated and delivered at Eldoret this 17th day of May 2004.
JEANNE GACHECHE
JUDGE
Delivered in the presence of:-