Kenya Judgment

High Court · High Court at Chuka

Kerea Mutinda M’muthamia & Stephen Ruuri M’muthamia v Joseph Kanyuru M’muthamia [2017] KEHC 7898 (KLR)

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Professional case brief

Research organized from the available case record

Source document

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 Kiome

Stephen Ruuri M’Muthamia

Plaintiff Counsel: M/S Kiome

Joseph Kanyuru M’Muthamia

Defendant

03

Procedural history

  1. Posture

    Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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

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Judgment reading view

Judgment text

The complete available source text.

Source document

High Court

Judgment

[2017] KEHC 7898 (KLR)

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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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Order 17 Rule 2(1), Civil Procedure Rules

Legislation

Legislation referenced in the available case record.

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