[2016] KEHC 3942 (KLR)
The court found that the plaintiff, through counsel, conceded that the suit had been overtaken by events and failed to take any steps to amend the pleadings within the time granted. The court held that there was no justification to keep the suit pending, especially after 14 years of inactivity and in the absence of...
Source-derived case information.
- Citation
- [2016] KEHC 3942 (KLR)
- Parties
- Plaintiff: Kassim Babu; Plaintiff: Shakila Ismael Kibibi; Defendant: Akram Hassan Ali Babu; Defendant: Mumias Municipal Council; Defendant: Registrar of Lands Kakamega
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 147 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss Suit
- Outcome
- suit dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Eviction Proceedings, Restraining Orders, Delay in Litigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kassim Babu
Plaintiff
Shakila Ismael Kibibi
Plaintiff
Akram Hassan Ali Babu
Defendant
Mumias Municipal Council
Defendant
Registrar of Lands Kakamega
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss Suit
Legal Issues
- 1 Whether the suit should be dismissed as it has been overtaken by events and no amendment has been filed.
- 2 Whether the court should keep the suit pending despite the plaintiff's admission that the matter is overtaken by events.
Ratio Decidendi
The court found that the plaintiff, through counsel, conceded that the suit had been overtaken by events and failed to take any steps to amend the pleadings within the time granted. The court held that there was no justification to keep the suit pending, especially after 14 years of inactivity and in the absence of any formal application for amendment. The 2nd defendant's application for dismissal was justified to prevent the suit from remaining as a pending statistic. Accordingly, the suit was dismissed with no order as to costs.
Court Disposition
suit dismissed
Orders
- The suit is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
3REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL CASE NO. 147 OF 2002
KASSIM BABU……………………………………………1ST PLAINTIFF
SHAKILA ISMAEL KIBIBI ….………………..……………2ND PLAINTIFF
VERSUS
1. AKRAM HASSAN ALI BABU
2. MUMIAS MUNICIPAL COUNCIL
3. REGISTRAR OF LANDS KAKAMEGA…......…………..DEFENDANTS
RULING
[1] The application dated 23rd March 2016 came before Justice Kaniaru on 23rd March 2016 to prevent the 2nd defendant from carrying on a threatened eviction. The court declined to issue any restraining orders exparte. The judge ordered that the 2nd defendant be served and an interparte date be taken as a matter of urgency. The application was later fixed for hearing on 17/5/16. Madam Gloria Barasa advocate appeared for the applicant while M/s Omar appeared for the 2nd defendant. Ombito and Company were not present for the 1st defendant.
[2] Madam Barasa told the court that the defendants have evicted the plaintiff and the case had been overtaken by events. She however said that she needed to make an amendment. Mr. Omar had no objection. I ruled that this case has been in court for fourteen(14) years. The case was praying for a restraining order against the defendants from selling, disposing of and leasing South/Wanga/Lureko/575 pending the hearing and determination of Kakamega High Court Succession Cause No. 58/1989.
I gave the plaintiff seven(7) days to decide what she wanted to do since she said the suit was overtaken by events. We gave a mention date of 24/5/2016. On that day the plaintiff had done nothing. The 2nd defendant prayed to court that since the plaintiff had said the suit was overtaken by events that the suit be dismissed. Mr. Bw’onchiri who appeared for the plaintiff did not dispute that the suit had been overtaken by events. He only said that they had chosen to amend the suit. He argued that the court cannot dismiss the suit without a formal application further that the defendants have also occasioned the delay.
[3] There is no doubt that the plaintiff through his lawyer has said that this suit has been overtaken by events. There is therefore no need to adjourn the suit or keep it pending in the court registry in the hope that the plaintiff’s lawyer will amend the same.
[4] The 2nd defendant on hearing that the suit is overtaken by events applied that the suit be dismissed. I think their prayer is justified since there is no need to keep the suit as a pending statistic in this court. It has been so pending for 14 years. The plaintiff applied for time to decide what to do and was given time upto 24/5/16. He did nothing. There is no application for amendment in this pending case.
[5] Under the circumstances therefore I allow the 2nd defendant’s prayer. The suit is dismissed with no order as to costs.
Dated, signed and delivered at Bungoma this 27th day of July 2016
S.MUKUNYA – JUDGE
In the presence of
Gladys Court Assistant
Mr. Murunga h/b for Omar for the 2nd defendant/respondent
Mr. Makokha for Bw’onchiri for the applciant