[2015] KEHC 5704 (KLR)
The court found that the respondent failed to comply with repeated court orders to serve the application dated 14.8.2012 and to fix it for hearing. No action was taken for over a year, and the respondent did not attend court to oppose the instant motion. The court held that the failure to prosecute and serve the...
Source-derived case information.
- Citation
- [2015] KEHC 5704 (KLR)
- Parties
- Plaintiff: Lempeshua Ketuta; Respondent: Koyiet Lankoi; Defendant: The Kajiado Land Dispute Tribunal; Defendant: The Senior Resident Magistrate Court at Kajiado; Defendant: The Honourable Attorney General
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 237 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Motion to Dismiss for Want of Prosecution
- Outcome
- Application dated 18.10.2013 allowed; application dated 14.8.2012 dismissed for want of prosecution and service.
- Judges
- CM Kariuki
- Legal Topics
- Dismissal for Want of Prosecution, Judicial Review, Service of Process, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lempeshua Ketuta
Plaintiff
Koyiet Lankoi
Respondent
The Kajiado Land Dispute Tribunal
Defendant
The Senior Resident Magistrate Court at Kajiado
Defendant
The Honourable Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the application dated 14.8.2012 should be dismissed for want of service and prosecution.
- 2 Whether the applicant complied with court orders to serve the application and fix it for hearing.
Ratio Decidendi
The court found that the respondent failed to comply with repeated court orders to serve the application dated 14.8.2012 and to fix it for hearing. No action was taken for over a year, and the respondent did not attend court to oppose the instant motion. The court held that the failure to prosecute and serve the application justified its dismissal for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules. The court therefore allowed the motion dated 18.10.2013 in terms of prayers 1 and 2, effectively dismissing the application for want of prosecution and non-compliance with court orders.
Court Disposition
Application dated 18.10.2013 allowed; application dated 14.8.2012 dismissed for want of prosecution and service.
Orders
- Application dated 18.10.2013 is allowed in terms of prayers 1 and 2.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
MISC.APP.NO.237 OF 2011
IN THE MATTER OF: AN APPLICATION BY LEMPESHA KETUTA FOR ORDERS OF
APPLICATION FOR REVIEW FOR ORDERS OF CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF: THE LAND DISPUTE TRIBUNAL ACT OF 1990
IN THE MATTER OF: THE SENIOR RESIDENT MAGISTRATE’S COURT AT KAJIADO AND LAND
DISPUTE TRIBUNAL CASE NO.64 OF 2011 KOYIET LANKOI –VS- LEMPESHUA KETUTA
AND
IN THE MATTER OF: LR. NOS. KAJIADO/PURKO/147 AND 854
LEMPESHUA KETUTA.....................................................................PLAINTIFF
VERSUS
KOYIET LANKOI.................................................................1ST RESPONDENT
THE KAJIADO LAND DISPUTE TRIBUNAL..............................2ND DEFENDANT
THE SENIOR RESIDENT MAGISTRATE COURT AT KAJIADO...3RD DEFENDANT
THE HONOURABLE ATTORNEY GENERAL...............................4TH DEFENDANT
RULING
1. The Motionfor ruling is dated 18. 10. 2013 seeking to dismiss application dated 14. 8.2012 for want of service and prosecution. The same is based on Order 17 Rule 2 Civil Procedure Rules (2010). The Application is supported by grounds (a) to (f) on the face of the Motion and the supporting affidavit of Koyiet Lankoi sworn on 18. 10. 2013. The application is opposed by the 1st Respondent who has sworn affidavit on 5. 12. 2013.
2. The matter came for hearing on 4. 12. 2014 but only Applicant appeared and proceeded with the application. None of the Respondents or their Advocates appeared. The summary of the Applicant thrust is that the Notice of Motion dated 4. 8.2012 was filed on 15. 9.2012 and fixed for hearing on 17. 10. 2012. The same seeks to set aside Judge Makhandia orders of 5. 7.2012 dismissing Judicial Review application dated 25. 11. 2012.
3. On 17. 10. 2012 the court ordered the Applicants in the application dated 14. 8.2012 to serve Respondents Applicant herein but same was not complied with. The service was not done as ordered nor was application fixed for hearing for over one year since aforesaid orders were made. The Applicant thus seeks the prayers in Notice of Motion dated 18. 10. 2013.
4. The court record shows that, the Judicial Review dated 25. 11. 2011 was dismissed for non-attendance on 8. 7.2012. The Applicant then and Respondent in instant motion lodged application dated 14. 8.2012 and was ordered on 22. 8.2012 to serve same and fix inter parte hearing. On 17. 10. 2012 the matter came before judge when Applicant in instant motion sought to be served with application dated 14. 8.2010. The court directed once more same to be served in an order of 17. 10. 2012.
5. The Respondent never took any other action nor serve the motion prompting the filing of instant motion. The Respondent has failed to attend court to oppose the application. The court is left with no option but to allow the motion.
6. The court thus makes the following orders:
1. Application dated 18. 10. 2013 is allowed in terms of prayers 1 and 2.
Datedand DeliveredatMachakos,this13thday ofMarch, 2015.
CHARLES KARIUKI
JUDGE