[2019] KEHC 3692 (KLR)
The court found that the applicant and their counsel had failed to take steps to prosecute the application for stay and injunction, including failing to attend scheduled hearings and not moving the court to amend orders as requested. The court held that it is not in the interest of justice for an application to...
Source-derived case information.
- Citation
- [2019] KEHC 3692 (KLR)
- Parties
- Applicant: Juliet Gemanah Mkiwa Wakesho; Respondent: L.R. Kipsang & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 29 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay and Injunction; Dismissal for Non Attendance
- Outcome
- application dismissed for non-attendance; interim orders vacated
- Judges
- GMA Dulu
- Legal Topics
- Stay of Execution, Injunctions, Dismissal for Non Attendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juliet Gemanah Mkiwa Wakesho
Applicant
L.R. Kipsang & Co. Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay and Injunction; Dismissal for Non Attendance
Legal Issues
- 1 Whether the application for stay of execution and injunction should remain pending despite repeated non-attendance by the applicant or their counsel.
- 2 Whether interim orders should be vacated due to failure to prosecute the application.
Ratio Decidendi
The court found that the applicant and their counsel had failed to take steps to prosecute the application for stay and injunction, including failing to attend scheduled hearings and not moving the court to amend orders as requested. The court held that it is not in the interest of justice for an application to remain pending indefinitely without prosecution. Consequently, the application was dismissed for non-attendance, and all interim orders previously granted were vacated.
Court Disposition
application dismissed for non-attendance; interim orders vacated
Orders
- The application dated 29th November 2018 is dismissed for non-attendance of the applicant or their advocate on the hearing date.
- All interim orders issued on the application are hereby vacated.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
MISC. APPLICATIONB NO.29 OF 2018
JULIET GEMANAH MKIWA WAKESHO.....APPLICANT/OBJECTOR
VERSUS
L.R. KIPSANG & CO. ADVOCATES...........PLAINTIFF/RESPONDENT
RULING
1. In this matter an application dated 28th November 2018 came up in court under certificate of urgency filed by Kasina & Associates Advocates for the objector Juliet Gemanah Mkiwa Wakesho.
2. Therefrom on 29th November 2018 (wrongly typed in the order as 27th November 2018) the court issued the following orders:-
1. The matter be and is hereby certified as urgent and service be dispensed with in the first instance.
2. An order of stay of execution of judgment and order of 30th October, 2018 be and is hereby issued pending the hearing and final determination of the application.
3. The warrant of attachment issued on 3rd October 2018 to Hegeons Auctioneers be and is hereby stayed.
4. An order of injunction be and is hereby issued against the plaintiff and Hegeons Auctioneers from auctioning or disposing of the motor vehicle registration No.KBF 749 K Toyota RAV 4 Grey in colour in an auction scheduled to take place on 29th November 2018 in Kericho opposite Law courts.
5. An order be and is hereby issued to the Officer Commanding Station, Njoro Police Station to confiscate and keep the motor vehicle registration No.KBF 749 K until the matter is heard and determined.
3. The application was last fixed for hearing by Mumbi Ngugi J. on 29th October 2018 but was not heard. It came before me on 17th June 2019 and I fixed the application for hearing on 4th July 2019, but I was at Bomet Court. It was on 4th July 2019 fixed in the registry for hearing on 25th September 2019 when Mr. Kipsang urged this court to find that the injunction orders have lapsed, as the objector and his counsel had not attended court.
4. I note that on 7th August 2019 a letter was received from Dan. J. Kasina Advocate for the applicant asking that the court order above be amended to read Chepseon Police Station and not Njoro Police Station, but there is no indication that same was served, nor was there an indication that the court was formally moved to amend the order through an application.
5. In my view, the application dated 29th November 2018 should not continue to be pending in court indefinitely. The applicant’s counsel has for a long time neither fixed the application for hearing, nor moved the court to progress the same. They also failed to attend court for the hearing.
6. I thus dismiss the application dated 29th November 2018 for non-attendance of the applicant or his/her advocate on the hearing date. All interim orders issued on the application are hereby vacated.
Dated and delivered at Kericho this 17th day of October 2019.
George Dulu
JUDGE