[2016] KEHC 5843 (KLR)
The Court found that the requirements of Order 17 of the Civil Procedure Rules are not mere technicalities but legal requirements. However, the Plaintiff demonstrated sufficient cause for the delay, primarily due to transition issues following the dissolution of the Municipal Council and the establishment of the...
Source-derived case information.
- Citation
- [2016] KEHC 5843 (KLR)
- Parties
- Plaintiff: Municipal Council of Meru; Defendant: Gituma Mwiti; Defendant: Ruffers Mutua (Chief); Defendant: Mwiti Titua M'Thambu; Defendant: Kibaki M'Iring'o; Defendant: Mworia M'Mutungi; Defendant: Mrs. Njiru Nkuruguchi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 40 of 2012
- Procedural Posture
- Civil Suit / Ruling on Applications for Dismissal for Want of Prosecution and for Substitution of Plaintiff
- Outcome
- Application for dismissal for want of prosecution dismissed; application for substitution of plaintiff allowed.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Substitution of Parties, Compulsory Acquisition, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Municipal Council of Meru
Plaintiff
Gituma Mwiti
Defendant
Ruffers Mutua (Chief)
Defendant
Mwiti Titua M'Thambu
Defendant
Kibaki M'Iring'o
Defendant
Mworia M'Mutungi
Defendant
Mrs. Njiru Nkuruguchi
Defendant
Procedural Posture
Civil Suit / Ruling on Applications for Dismissal for Want of Prosecution and for Substitution of Plaintiff
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 of the Civil Procedure Rules.
- 2 Whether the Meru County Government should be substituted as plaintiff in place of the defunct Municipal Council of Meru.
- 3 Whether the delay in prosecuting the suit is excusable given the transition from local authority to county government.
Ratio Decidendi
The Court found that the requirements of Order 17 of the Civil Procedure Rules are not mere technicalities but legal requirements. However, the Plaintiff demonstrated sufficient cause for the delay, primarily due to transition issues following the dissolution of the Municipal Council and the establishment of the Meru County Government. The Court held that the substantive issues, particularly regarding compulsory acquisition and compensation, warrant determination on their merits. Consequently, the application for dismissal for want of prosecution was denied, and the application for substitution of the plaintiff was allowed, enjoining the County Government of Meru in place of the defunct...
Court Disposition
Application for dismissal for want of prosecution dismissed; application for substitution of plaintiff allowed.
Orders
- The application dated 20/05/2015 for dismissal for want of prosecution is dismissed.
- The application dated 16/10/2014 for substitution is allowed; the County Government of Meru is enjoined as plaintiff in place of the Municipal Council of Meru.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CIVIL SUIT NO. 40 OF 2012
MUNICIPAL COUNCIL OF MERU..................................................PLAINTIFF
VERSUS
GITUMA MWITI....................................................................1ST DEFENDANT
RUFFERS MUTUA (CHIEF).................................................2ND DEFENDANT
MWITI TITUA M'THAMBU................................................3RD DEFENDANT
KIBAKI M'IRINGO...............................................................4TH DEFENDANT
MWORIA M'MUTUNGI......................................................5TH DEFENDANT
MRS. NJIRU NKURUGUCHI.............................................6TH DEFENDANT
R U L I N G
There are two applications in this matter. The 1st application is dated 20/05/2015 and seeks orders that:-
1. The plaintiff's suit be dismissed for want of prosecution.
2. The Court do make such further orders as may meet the ends of justice.
3. Costs of this application be provided for.
The application has the following grounds:-
1. The Plaintiff/Respondent has not taken any action in this suit since 15/03/12.
The 1st and 3rd Defendants have submitted that 4 years after the Meru County Government came into existence, the plaintiffs have failed to substitute the former local authority with the County Government. They argue that the belated filing of the application dated 16/10/2014 can not cure the failure of the Plaintiff to take any step before the expiry of one year after a matter in the suit was last in Court.
The 2nd Application is dated 16th October, 2014 and seeks orders :-
1. That this Honourable Court be pleased to enjoin the Meru County Government in this suit in place of the defunct Plaintiff , the Municipal Council of Meru.
2. That Cost be in the cause.
The application is supported by the affidavit of Moses N. Kirima and has the following grounds:-
a. ThePlaintiff is defunct and no longer exists.
b.The suit herein cannot proceed until the plaintiff is substituted.
c.There was delay in receiving proper instructions on the wayforward in the matter due to transition technicalities.
The Plaintiff has submitted that the suitlands in dispute were compulsorily acquired by the Government and the Plaintiff developed the same by putting up a slaughter house which supplied Meru Central with meat. The Plaintiff further avers that the Defendants were compensated when their land was compulsorily acquired by the Government . The Plaintiff submits that the land was properly handed over to the Municipal Council of Meru after it was compulsorily acquired. The plaintiff urges this Court not dismiss the suit on a mere technicality.
I opine that the requirements laid down by the provisions of order 17, CPR, do not constitute a mere technicality. They amount to a legal requirement.
However, I find it necessary for the Court to determine some issues in this suit on their merits, especially the claim that the Defendants had been compensated when the parcels of land were compulsorily acquired by the Government. Indeed the issue of whether or not the land had been compulsorily acquired can only be determined after the suit had been heard.
Concerning the 1st application, I find that the Plaintiff/Applicant has shown to the satisfaction of the Court in terms of order 17,CPR, that this suit should not be dismissed. Regarding the 2nd application prayer 1 thereof is allowed with the effect that the County Government of Meru is allowed to be enjoined in this suit.
For both applications, costs shall be in the cause.
It is so ordered.
Delivered in open Court at Meru this 16th day of March, 2016 in the presence of:-
CC: Daniel/Lilian
Miss E.G. Mwangi for Gituma Mwiti
P. M. NJOROGE
JUDGE