[2000] KEHC 451 (KLR)
The court found that the respondent/plaintiff had not demonstrated any interest in prosecuting the suit, as evidenced by repeated adjournments and failure to take steps to fix the matter for hearing. The court noted that the suit, being an originating summons seeking extension of time to apply for Land Control Board...
Source-derived case information.
- Citation
- [2000] KEHC 451 (KLR)
- Parties
- Applicant: Patrick Njanja Kamau; Respondent: Isaak Ribiro Kamere
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 119 of 1996
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant/applicant
- Legal Topics
- Dismissal for Want of Prosecution, Adjournment Practice, Land Control Board Consent, Originating Summons, Extension of Time, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Patrick Njanja Kamau
Applicant
Isaak Ribiro Kamere
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order XVI Rule 5 of the Civil Procedure Rules.
- 2 Whether the plaintiff would suffer injustice if the suit is dismissed.
- 3 Whether the court should exercise its discretion to extend time for applying for Land Control Board consent under section 8 of the Land Control Act.
Ratio Decidendi
The court found that the respondent/plaintiff had not demonstrated any interest in prosecuting the suit, as evidenced by repeated adjournments and failure to take steps to fix the matter for hearing. The court noted that the suit, being an originating summons seeking extension of time to apply for Land Control Board consent, would be futile since the vendor disputed the existence of a sale agreement and refused to transfer the land. The court held that even if the extension were granted, the Land Control Board could not give consent against the wishes of the vendor, nor could the court compel an unwilling seller to transfer the land. In light of the lack of prosecution and the futility of...
Court Disposition
suit dismissed for want of prosecution with costs to the defendant/applicant
Orders
- The suit is dismissed for want of prosecution.
- Costs of the suit are awarded to the defendant/applicant.
Full Case Text
Judgment text and source record
47 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 119 OF 1996 (O.S)
MISC APPLICATION NO. 119 OF 1996
PATRICK NJANJA KAMAU……………………APPLICANT
VERSUS
ISAAK RIBIRO KAMERE………………………RESPONDENT
RULING
This is the Respondents application for an order that suit be dismissed for want of prosecution under Order XVI Rule 5 of the Civil Procedure Rules. The application was served on advocates for respondent M/S Mwicigi Kinuthia & Co Advocates on 2. 5.2000 He did not file any replying affidavit or grounds of opposition. Mrs Keya appeared on the hearing date – 19. 6.2000 and stated that she had filed Notice of appointment of Advocates and applied for adjournment to file a replying affidavit. The application on adjournment was opposed by applicants counsel and rejected by court Mrs Keya in reply to the application stated that it is the advocate previously on record for respondent who is entirely to blame.
In para 4 of the supporting Wairimu Njugi - counsel for applicant deposes that matter came for hearing on 5. 10. 98, 21. 1.99, 2. 3.99, 30. 6.99 and in all those instances Respondent s counsel applied for adjournment The record verifies that in those four instances, it is the respondents counsel who applied for adjournment. Case was last adjourn on 14. 7.99 and Respondents counsel had not fixed a hearing date by 13. 4.2000 when the present application was filed.
Court is entitled to take into account previous adjournment intended to keep the suit alive has even inherent jurisdiction to dismiss the suit – See Mukisa Biscuits Co. Versus West end Distributors (1969) EA 696 = page 699 paras B, C
I am satisfied that Respondent /plaintiff has not been interested in prosecuting the suit
Will plaintiff suffer any injustice if suit is dismissed? The suit is an originating summons in which plaintiff prays for an order under S. 8 of Land control Act that court do extend the time within the applicant may apply for consent of Githunguri Land Control Board for sale of ¼ acre out of land reference no. githunguri/Githunguri/1310. A further order is sought that the Registrar of the High court be authorized to execute the application for consent of Land Control board on behalf of the defendant. Although court has jurisdiction under S. 8(1) of the Land Control Act to extend the period of six months for applying for consent of the Land Control Board, Its discretion can only be exercised where both seller and purchaser are in agreement and both are willing to complete the sale for it would be futile to extend the period if the vendor will not at the Land Control Board meeting agree to convey the land are if the vendor eventually refuses to execute the transfer documents.
In the present case, affidavit filed show that the vendor disputes that there was nay agreement of sale. He has refused to transfer the land. Even if the orders sought in the originating summons were to be granted it would be futile because Land Control Board cannot give consent against wishes of the vendor or force unwilling seller to transfer the land.
In those circumstances it is futile to keep the suit alive. Consequently, I allow the application with costs to the defendant applicant and dismiss suit for want ofprosecution as prayed I give costs of the suit to the defendant.
E. M. Githinji
Judge
21. 6.2000
Mrs Nyoike holding brief for Kamere present
Mrs Keya for plaintiff present
1. 9.2000
Notice of change of advocates filed by Ndungu K. and Mbuthia advocates for the
plaintiff
Signed
Executive Officer
7. 5.2001
Mr. Phillip for Kamere and company Advocates for Respondent
Respondents bill of costs fixed for 25th June, 2001.
Notice to issue
Signed
Principal Deputy Registrar
25. 6.01
Coram CK. Njai PDR
Court clerk Susan
Mr. Kamere for Respondent
No appearance for applicant
Court: Taxation at 9. 15 a.m.
9. 15 a.m.
C.K. Njai
Mr. Kamere for the Respondent (holding brief
Mrs Keya for the applicant/Respondent
Court: By consent the Respondents bill of costs against the applicant is taxed and agreed in the all-inclusive sum of shs 69,000/=
C.K. Njai
Principal Deputy Registrar
Upon Reading Application dated 23. 7.2001 issue attachement/prhibitory order as prayed
Signed
Deputy Registrar