Kerea Mutinda M’muthamia & Stephen Ruuri M’muthamia v Joseph Kanyuru M’muthamia [2017] KEHC 7898 (KLR)
- Citation
- [2017] KEHC 7898 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- FM Njoroge
- Case number
- Environment & Land Case 43 of 2014
- Language
- English
More details
- Court
- High Court
- Panel
- FM Njoroge
- Case number
- Environment & Land Case 43 of 2014
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that no sufficient cause was shown to prevent dismissal of the suit for want of prosecution as required by Order 17 Rule 2(1) of the Civil Procedure Rules. Although the plaintiffs' counsel indicated that the matter had been settled out of court, the absence of the defendant precluded the court from marking the suit as settled. The court therefore exercised its discretion to dismiss the suit for want of prosecution.
Court disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
02
Material facts
Parties
Kerea Mutinda M’Muthamia
Plaintiff Counsel: M/S KiomeStephen Ruuri M’Muthamia
Plaintiff Counsel: M/S KiomeJoseph Kanyuru M’Muthamia
Defendant03
Procedural history
Posture
Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
04
Questions and positions
Legal issues
- 01
Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules.
- 02
Whether the court should mark the suit as settled in the absence of the defendant.
Party arguments
- Applicant
- Counsel for the plaintiffs informed the court that the parties had settled the matter at home and requested that the suit be marked as settled with no order as to costs.
- Respondent
- The defendant was absent from court despite evidence of proper service and did not present any argument or objection.
05
Court’s reasoning
Legal principles
- 01
Order 17 Rule 2(1), Civil Procedure Rules
A suit may be dismissed for want of prosecution if no sufficient cause is shown under Order 17 Rule 2(1) of the Civil Procedure Rules.
- 02
General principles of civil procedure
A matter cannot be marked as settled unless all parties are present or have consented to the settlement.
06
Ratio, limits and disposition
Ratio decidendi
The court found that no sufficient cause was shown to prevent dismissal of the suit for want of prosecution as required by Order 17 Rule 2(1) of the Civil Procedure Rules. Although the plaintiffs' counsel indicated that the matter had been settled out of court, the absence of the defendant precluded the court from marking the suit as settled. The court therefore exercised its discretion to dismiss the suit for want of prosecution.
Obiter and limits
- The court declined to mark the suit as settled due to the absence of the defendant.
Court disposition
suit dismissed for want of prosecution
- The suit is dismissed for want of prosecution.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
ELC CASE NO. 43 OF 2017
FORMERLY MERU HCCC NO. 99 OF 2014
KEREA MUTINDA M’MUTHAMIA……………1ST APPLICANT/PLAINTIFF
STEPHEN RUURI M’MUTHAMIA……………..2ND APPLICANT/PLAINTIFF
VERSUS
JOSEPH KANYURU M’MUTHAMIA…………RESPONDENT/DEFENDANT
RULING
1. Notice was duly issued for the parties to come to court to show cause why the suit should not be dismissed for want of prosecution in terms of order 17 rule 2(1) of the Civil Procedure Rules.
2. Cause was to be shown on 15. 2.2017. Whereas Mr David Gichuki, advocate, held brief for Miss Kiome, the plaintiff’s advocate, the defendant was not in court even though there was evidence that he had been properly served with the apposite hearing date.
3. Mr Ndegwa, for Miss Kiome, for the plaintiff, told the court that the parties had settled the matter at home and wished the suit to be marked as settled with no order as to costs.
4. As the defendant is not in court, I decline to mark the suit as settled.
5. I find that no cause has been shown to the satisfaction of the court that this suit should not be dismissed.
6. This suit is dismissed.
Delivered in open court at Chuka this 15th day of February, 2017 in the presence of:
CA: Ndegwa
David Gichuki holding brief for M/S Kiome for the plaintiff
Defendant – absent
P. M. NJOROGE
JUDGE
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