[2018] KEHC 6783 (KLR)
The court found that the suit had already been dismissed by a previous order of the court (Hon. Mbogholi, J) following a ruling by Hon. D. A. Onyancha J on 8th June, 2016. As there was no existing suit before the court, the application seeking dismissal for want of prosecution or abatement was rendered moot. The...
Source-derived case information.
- Citation
- [2018] KEHC 6783 (KLR)
- Parties
- Respondent: Media Council of Kenya; Applicant: Eric Orina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 540 of 2012
- Procedural Posture
- Civil Application / Ruling on Application to Dismiss Suit for Want of Prosecution
- Outcome
- application struck out with costs
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Abatement of Suit, Delay in Prosecution, Service of Summons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Media Council of Kenya
Respondent
Eric Orina
Applicant
Procedural Posture
Civil Application / Ruling on Application to Dismiss Suit for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the suit has abated due to failure to serve summons for over four years.
- 3 Whether the application is sustainable given the prior dismissal of the suit.
Ratio Decidendi
The court found that the suit had already been dismissed by a previous order of the court (Hon. Mbogholi, J) following a ruling by Hon. D. A. Onyancha J on 8th June, 2016. As there was no existing suit before the court, the application seeking dismissal for want of prosecution or abatement was rendered moot. The court therefore struck out the application with costs, as there was no suit to be dismissed or abated.
Court Disposition
application struck out with costs
Orders
- The application dated 31st January, 2017 is struck out with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 540 OF 2012
MEDIA COUNCIL OF KENYA................PLAINTIFF/RESPONDENT
VERSUS
ERIC ORINA................................................DEFENDANT/APPLICANT
RULING
1. The application dated 31st January, 2017seeks the following of orders:
1. That this suit be dismissed with costs for want of prosecution.
2. That this suit has abated.
3. That costs of this application be provided for.
2. It is stated in the supporting affidavit that the suit herein was filed on 1st November, 2012, yet to date the Applicant has not been served with Summons to Enter Appearance. That simultaneously with the filing of the suit, the Respondent filed an application seeking orders of temporary injunction but the application was dismissed with costs. That the Respondent has not bothered to prosecute the matter, which is prejudicial to the Applicant. The Applicant’s contention is that the suit has abated for failure to serve summons for over four years.
3. The application is opposed. It is stated in the replying affidavit that the delay was caused by an internal crisis as the Respondent had no sitting Board of Directors for about two years. It is stated that the Respondent therefore had no capacity to issue instructions to its advocates. It is the Respondent’s position that it’s still interested in this suit but no defence has yet been served but will press on with the suit. The Respondent further blames the delay on the unavailability of the court file.
4. The Applicant filed a supplementary affidavit and decried the lack of documents in support of any crisis at the Respondent’s Board. It is averred that no summons were taken out and a request for interlocutory judgment was made. It is further contended that the letter requesting for the file have been backdated and that, in any event, there is a procedure for reconstruction of court files.
5. The application was canvassed by way of written submissions which I have duly considered.
6. While perusing the proceedings herein to draft the ruling, I have noted that following the ruling by Hon. D. A. Onyancha J, on 8th June, 2016 the suit was dismissed by Hon Mbogholi, J (See page 9 of the proceedings). Consequently, there is no suit to be dismissed herein. I therefore strike out the application dated 31st January, 2017 with costs.
Date, signed and delivered at Nairobi this 16th day of May, 2018
B. THURANIRA JADEN
JUDGE