[2015] KEHC 6139 (KLR)
The court found that the Plaintiff had taken a step in prosecuting the suit by fixing a hearing date on 17/04/2013 for 21/10/2013, as evidenced by the court record and the exhibited hearing notice. This action constituted a step under Order 17 rule 2 of the Civil Procedure Rules. Since less than one year had lapsed...
Source-derived case information.
- Citation
- [2015] KEHC 6139 (KLR)
- Parties
- Plaintiff: Kamula Kyatu Mutuku; Defendant: Salim Kamula; Defendant: Agricultural Finance Corporation
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 238 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Steps in Prosecution, Fixing Hearing Dates, Order 17 Rule 2, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamula Kyatu Mutuku
Plaintiff
Salim Kamula
Defendant
Agricultural Finance Corporation
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inactivity exceeding two years.
- 2 Whether the fixing of a hearing date constitutes a step in prosecution under Order 17 rule 2 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the Plaintiff had taken a step in prosecuting the suit by fixing a hearing date on 17/04/2013 for 21/10/2013, as evidenced by the court record and the exhibited hearing notice. This action constituted a step under Order 17 rule 2 of the Civil Procedure Rules. Since less than one year had lapsed from the date the case was fixed for hearing to the date of the application for dismissal, the threshold for dismissal for want of prosecution was not met. The court therefore dismissed the application for dismissal and directed that the suit be given a hearing date on a priority basis.
Court Disposition
application dismissed
Orders
- The application dated 4/12/2013 is dismissed with costs in cause.
- The suit to be given a hearing date on priority basis.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 238 OF 2009
KAMULA KYATU MUTUKU………………………..… PLAINTIFF/RESPONDENT
VERSUS
SALIM KAMULA
AGRICULTURAL FINANCE CORPORATION ..… DEFENDANTS/APPLICANTS
R U L I N G
The application dated 4/12/2013 seeks orders that the suit herein be dismissed for want of prosecution for the Plaintiff’s failure to prosecute the same for a period in excess of two years.
The affidavit sworn by the 1st Defendant/Applicant in support of the application states that the suit was filed on 30/7/2009 and the pleadings were closed on 18/2/2010. That the Plaintiff has failed and/or neglected to set the suit down for hearing for a period of more than two years.
The application is opposed. The Respondent filed a replying affidavit which states that steps have been taken to prosecute this matter. That the case was fixed for hearing on 21/10/2013 but the same was not cause listed. That this being a land case, the same was awaiting the Constitution of the Environmental Land Court in Machakos.
The 2nd Defendant did not file any response to the application.
The application was canvassed by way of oral submissions. I have duly considered the same.
The court record reflects that on 17/04/2013, the case was fixed for hearing on 21/10/2013. A Hearing Notice sent to the counsel for the 2nd Defendant is exhibited (Annexture “KKM1”). The said annexture is duly stamped by the 2nd Defendant as having been received by the 2nd Defendant on 15/5/2013. It is not clear why service was not effected through the 2nd Defendant’s Advocates. It is also not clear whether the 1st Defendant/Applicant was served. It seems that there were no letters of invitation sent out to the Defendants to participate in the fixing of the hearing date.
Be as it may, the fixing of the case for hearing on 17/04/2013 constitutes taking of a step as envisaged under Order 17 rule 2 of the Civil Procedure Rules. From the date the case was fixed for hearing to the date the application was dismissed, one year had not lapsed.
With the foregoing, I dismiss the application with costs in cause. The suit to be given a hearing date on priority basis.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 24thday of February2015.
………………………………………
B. THURANIRA JADEN
JUDGE