[2015] KEHC 1196 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

HCC 93 OF 2012

MUNICIPAL COUNCIL OF MERU........................................................... PLAINTIFF/APPPLICANT

VERSUS

M’IKIAO M’IRINGO...................................................................... 1ST DEFENDANT/RESPONDENT

NATHANIEL KITHINJI ............................................................... 2ND DEFENDANT/RESPONDENT

THE MERU CENTRAL LAND REGISTRAR.............................. 3RD DEFENDANT/RESPONDENT

THE ATTORNEY GENERAL....................................................... 4TH DEFENDANT/RESPONDENT

RULING

This application states that it is filed Under Order 17 Rule2 (3), Order 51 Rule 1, of the Civil Procedure Rules, 2010, Section 1A,1B and 3A of the Civil Procedure Act and any other enabling provisions of the Law. The application is dated 21st July, 2014 and seeks orders:-

THATthis suit be dismissed for want of prosecution.

THATthis Honourable Court be pleased to issue any other expedient and appropriate orders in the circumstances.

THATthe costs of this suit and application be borne by the plaintiffs.

The Application has the following grounds:-

THATsince the ex-parte hearing of the plaintiff’s application dated 16. 05. 2012 wherein the plaintiff obtained favourable orders, it has never showed (sic) serious interest in this matter.

THATthe plaintiff’s successor MERU COUNTY GOVERMENT has never taken any step to pursue this matter since succeeding the Plaintiff more that 1 year ago.

THATthe plaintiff’s successor MERU COUNTY GOVERNMENT action can be construed as lack of any interest in this matter.

THATthe applicant as the registered owner of the land in dispute is suffering great prejudice due to the prolonged delay.

The application is supported by the affidavit of Nathaniel Kithinji, the 2nd Applicant/ Defendant.

The 1st and 2nd defendants have submitted that they are the registered owners of Land Parcel No. NYAKI/MULANTHANKARI/829 and are suffering because of the delayed hearing and determination of this suit. They say that the Meru County Government succeeded the defunct Meru County Council in March 2013, but no step had been taken to effect the necessary substitution. As at the time this application was filed on 21. 07. 14, no step had been taken in this matter for over one year Contrary to the provisions of Order 17 of the Civil Procedure Rules.

The applicants have submitted that this application is not opposed and opine that for this reason alone this application should succeed. They also submit that the applicant’s application dated 16. 10. 2014 seeking substitution of the defunct Municipal Council can not cure the failure of the Plaintiff to take any step before the expiry of one year as envisaged by Order 17 of the Civil Procedure Rules.

The applicants say that the Plaintiff’s Submissions filed on 03. 12. 2014 do not amount to any defence against the application and opine that nothing can validate and give life to the applicants’ submissions as the plaintiff had never filed any response to this application.

The Plaintiff submits that seeking to dismiss this suit is just like seeking to dismiss the suit of a deceased person as in this case the Municipal Council of Meru had ceased to exist by operation of the law when the County Government of Meru was formed. It is argued that the defendants will not suffer any harm if the plaintiff is given a chance to be heard.

I find that the Submission that the defendants have frequently sold part of the disputed land not relevant to this application in which the plaintiff should be showing cause why this suit should not be dismissed for want of prosecution. Regarding the assertion that a suit of a deceased person can not be dismissed, it is clear that such a case abates after the expiry of the period stipulated by the law. Does the plaintiff wish to suggest that in the case of a legal person, a case can be delayed indefinitely if there is no substitution? I do not agree.

I find that the Plaintiffs did not respond to this application. I also note that the Plaintiff’s application dated 16. 10. 2014 was filed almost 3 months after this application was filed. I am inclined to agree with the applicants that this was a reflexive action after the plaintiff was awakened from his slumber after this application for dismissal of the suit was filed by the 1st and 2nd defendants.

The operative part of Order 17 of the Civil Procedure Rules, 2010 is Rule 2. It states as follows:-

2(1) “In any suit in which no application has been made or step taken by either party for one year, the Court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.

(2) If cause is shown to the satisfaction of the Court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.

(3) Any party to the suit may apply for its dismissal as provided in subrule 1”.

This application has been brought to Court Under Order 17 Rule 2 Subrule 3. I find that this application is properly before this Court.

I have carefully examined the pleadings and the submissions of the parties. Order 17 Rule 1 requires that Cause be shown to the satisfaction of this Court as to why a suit should not be dismissed for any step not having been taken for one year by any of the parties . It is not disputed by any of the parties and more particularly by the Plaintiff that no step had been taken for more than one year when this application was filed. What now remains for determination is if cause has been shown to the satisfaction of this Court as to why this suit should not be dismissed.

I find that the parties have not shown to the satisfaction of this Court why this suit should not be dismissed. More particularly the Plaintiff’s Submissions have not satisfied this Court that this suit should not be dismissed. The filing of the application to substitute the Municipal Council of Meru with the County Government of Meru, three months after this application had been filed, does not cure the failure of the parties to have filed an application or taken any step for one year as envisaged by the provisions of Order 17 Rule 2 Subrule 1.

In the Circumstances, my laconic finding is that the parties and especially the Plaintiff have not shown cause to the satisfaction of this Court as to why this suit should not be dismissed, Therefore, this suit is dismissed.

Costs are awarded to the 1st and 2nd Defendants .

It is so ordered.

Delivered in Open Court at Meru this 22nd day of October, 2015 in the presences of :

CC:

Daniel /Lilian

Kaumbi h/b Kirima for Plaintiff

B.G.Kariuki h/b Gichunge for 1st and 2nd Defendants

Kieti for 3rd and 4th Defendants

P. M. NJOROGE

JUDGE