[2009] KEHC 766 (KLR)
The court found that the plaintiffs/respondents had failed to take any steps to prosecute the suit since the last adjournment and had not complied with the court's order to pay costs. No replying affidavit or grounds of opposition were filed in response to the application. In the absence of any action or opposition...
Source-derived case information.
- Citation
- [2009] KEHC 766 (KLR)
- Parties
- Plaintiff: Mathew Cheruiyot; Plaintiff: Juliana Cheruiyot; Defendant: Annah Bwokeny; Defendant: Recho Sioror; Defendant: Annah Sioror
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 80 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Dismiss for Lack of Prosecution
- Outcome
- suit dismissed for lack of prosecution
- Legal Topics
- Dismissal for Lack of Prosecution, Adjournment of Suit, Costs Orders, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathew Cheruiyot
Plaintiff
Juliana Cheruiyot
Plaintiff
Annah Bwokeny
Defendant
Recho Sioror
Defendant
Annah Sioror
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Dismiss for Lack of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for lack of prosecution under Order XVI rule 5(d) of the Civil Procedure Rules.
- 2 Whether the plaintiffs/respondents failed to comply with previous court orders regarding payment of costs.
- 3 Whether the absence of a replying affidavit or grounds of opposition affects the outcome of the application.
Ratio Decidendi
The court found that the plaintiffs/respondents had failed to take any steps to prosecute the suit since the last adjournment and had not complied with the court's order to pay costs. No replying affidavit or grounds of opposition were filed in response to the application. In the absence of any action or opposition from the plaintiffs/respondents, and in accordance with Order XVI rule 5(d) of the Civil Procedure Rules, the court granted the application and dismissed the suit for lack of prosecution, awarding costs to the defendants/applicants.
Court Disposition
suit dismissed for lack of prosecution
Orders
- The originating summons is dismissed for lack of prosecution under Order XVI rule 5(d) of the Civil Procedure Rules.
- Costs awarded to the defendants/applicants.
Full Case Text
Judgment text and source record
56 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Civil Suit 80 of 2001
1. Civil practice and procedure
2. Application dated 16th September, 2009
a. To dismiss suit for lack of prosecution
b. Order XVI 59(d) cpr
c. Subject of main suit
Land claim
Upon Kericho/Kapkatet/1439 (portion) 1. 3 acres)
d. Case last adjournment 15th June, 2009
e. No action taken
3. Respondent:-
i) Failed to pay Kshs. 2,000/= costs as ordered by G.B.M. KARIUKI j ON 9. 10. 08.
ii) Failed to file replying affidavit of grounds of opposition.
4. Held
a) Application granted
b) Suit dismissed for lack of prosecution
5. Case Law - Nil
6. Advocates
N.O. Migiro advocate instructed by M/S Migiro & Co. advocates for the Defendants/Applicants - present
J.R. Kimeto advocate instructed by M/S Bett & Co. Advocates for the Plaintiffs/Respondents - present
MATHEW CHERUIYOT ………………………….1ST PLAINTIFF
JULIANA CHERUIYOT ………………………… 2ND PLAINTIFF
VERSUS
ANNAH BWOKENY ……………………….. 1ST DEFENDANT
RECHO SIOROR ……………………………2ND DEFENDANT
ANNAH SIOROR ……………………………3RD DEFENDANT
RULING
Application to dismiss the Originating Summons for
Lack of Prosecution
order XVI r 5(d) CPR
I: Procedure
1. Order XVI r 5(d) provides that “If within three months after-
a) …
b) Deleted by LN 36/00
c) …
d) the adjournment of the suit generally, the plaintiffs or the court of its own motion or notice to the parties does not set down the suit for hearing, the defendant may either set the suit down for hearing or apply for its dismissal”
II: Background
2. The originating summons was filed on 15th October, 2001 suing by the estate of the late Cheruiyot Arap Tele through Mathew Cheruiyot and Juliana Cheruiyot referred to the Plaintiff/respondents herein against the estate of Kimilgo Bwokeny and two others the defendant/applicant.
3. Unfortunately, Annah Bwokeny passed away and was substituted by the current two respondents/applicants.
4. She was able to enter appearance and file a reply in which she claimed that, land parcel Kericho/Kapkatet/1439 belonged to her and was never parcel of land Kericho/Kapkatet/ 995 belonging to the plaintiffs/respondents.
5. That 1. 3 acres of portion of the land was never the plaintiffs/respondents.
6. There was an African court case on this matter being No. 30 of 1956. Decided prior to adjudication and a registration of the portion of land. The registration occurred on 28th April, 1969.
7. The plaintiff’s case was not heard. It was adjourned and on 9th October, 2008 when it came for hearing before G.B.M Kariuki J it was adjourned with orders that Kshs. 2,000/= costs be paid to the defendants. This was never done.
III: Application 15th June, 2009
8. The defendants/applicants filed this present application to have the suit dismissed for lack of prosecution as no action had been taken on this matter.
9. No replying affidavit or grounds of opposition had been filed. The sum of Kshs. 2,000/= had never been paid since that last adjournment.
10. This application not being opposed is granted. The originating summons is hereby dismissed for lack of prosecution under Order XVI r 5(d) cpr with costs to the defendants/applicants.
DATED this 23rd day of October, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
N.O. Migiro advocate instructed by M/S Migiro & Co. advocates for the Defendants/Applicants
J.R. Kimeto advocate instructed by M/S Bett & Co. Advocates for the Plaintiffs/Respondents - present