[2004] KEHC 2512 (KLR)
The court found that the plaintiff could not be faulted for failing to prosecute the suit because there was a subsisting order of stay pending the determination of H.C.C.C. (Eldoret) 164 of 1992. The stay order effectively tied the plaintiff's hands, making it illogical and procedurally improper to expect any...
Source-derived case information.
- Citation
- [2004] KEHC 2512 (KLR)
- Parties
- Plaintiff: Paul Mwangi Njoroge; Defendant: Getrude Owiny Onyango
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 153 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed with costs
- Judges
- JW Gacheche
- Legal Topics
- Dismissal for Want of Prosecution, Stay of Proceedings, Land Disputes
- 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
Paul Mwangi Njoroge
Plaintiff
Getrude Owiny Onyango
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order XVI rule 5(c) of the Civil Procedure Rules.
- 2 Whether the plaintiff was precluded from taking further steps due to a stay order pending determination of another suit.
Ratio Decidendi
The court found that the plaintiff could not be faulted for failing to prosecute the suit because there was a subsisting order of stay pending the determination of H.C.C.C. (Eldoret) 164 of 1992. The stay order effectively tied the plaintiff's hands, making it illogical and procedurally improper to expect any further steps in the present suit. The defendant, being aware of the stay, acted vexatiously and abused the process by seeking dismissal for want of prosecution. Accordingly, the application was dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs
Orders
- The defendant's application to dismiss the suit for want of prosecution is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CIVIL SUIT NO. 153 OF 2001(OS)
PAUL MWANGI NJOROGE ……………………………………………………… PLAINTIFF
VERSUS
GETRUDE OWINY ONYANGO ……………………………………………… DEFENDANT
RULING
This is an application for orders to dismiss the plaintiff’s suit for want of prosecution, on the basis of the grounds inter alia, that since 1. 10. 2002 when the matter was last listed for hearing of the plaintiff’s application and ruling delivered on 22. 05. 2002, the plaintiff has not taken any steps to set the suit down for hearing. The applicant has moved the court under Order XVI rule 5(c) of the of the Civil Procedure Rules which stipulates that:If, within three months after-
(a) the close of pleadings; or
(c) the removal of the suit from the hearing list; or
(d) the adjournment of the suit generally, the plaintiff, or the court of its own motion on 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.”
The application is opposed by the plaintiff whose contention it is, that the same is frivolous, vexatious and an abuse of the due process. It is also his ground that this suit was stayed by the court pending the hearing and determination of H.C.C.C.(Eldoret) 164 of 1992.
I have perused the pleadings filed herein and I note the suit revolves 29 acres of land being a portion of land known as MTAMBO/1/KITALE/TRANS NZOIA (herein after called “the subject land”). I have also taken into account the ruling of Hon.Justice Etyang, delivered on 2/3/2003 in which he noted that there existed a dispute between this defendant, who is also the applicant herein, and a third party over the subject land leading to a suit against the two, to wit H.C.C.C. (Eldoret) 164 of 1992 and to which this plaintiff/respondent sought to be en-joined. The learned Judge ordered that this particular suit be stayed pending the determination of the aforementioned suit. I find that with that ruling on the records it would not have been be logical in the circumstances, for this plaintiff to have taken any further steps in this suit. His hands are tied by the orders of stay and he cannot thus be faulted on that account. I do therefore find that the application by the defendant who is well aware of the current position is not only vexatious, but that it is an abuse of the process and I do dismiss it with costs. Dated and delivered at Eldoret this 11th day of March, 2004
JEANN GACHECHE
JUDGE
In presence of: