[2021] KEHC 1964 (KLR)
The court found that the petitioner, having filed the petition, bore the heavier burden to move the court for hearing and comply with directions. The record showed repeated non-attendance and non-compliance by both parties, but especially the petitioner. However, considering the right to be heard and the gravity of...
Source-derived case information.
- Citation
- [2021] KEHC 1964 (KLR)
- Parties
- Applicant: Perister Kwamboka Omwenga t/a P. K. Omwenga and Associates; Respondent: Director Criminal Investigation Department; Respondent: China Road and Bridge Corporation Limited; Respondent: Kitei Peter
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 454 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Dismissal Notice and Directions for Compliance
- Outcome
- Petitioner granted one final opportunity to prosecute the claim; directions issued for compliance within 30 days; mention date set to confirm compliance.
- Legal Topics
- Dismissal for Want of Prosecution, Right to Be Heard, Case Management Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Perister Kwamboka Omwenga t/a P. K. Omwenga and Associates
Applicant
Director Criminal Investigation Department
Respondent
China Road and Bridge Corporation Limited
Respondent
Kitei Peter
Respondent
Procedural Posture
Constitutional Petition / Ruling on Dismissal Notice and Directions for Compliance
Legal Issues
- 1 Whether the petition should be dismissed for want of prosecution or non-attendance.
- 2 Whether the petitioner should be granted another opportunity to prosecute her claim.
Ratio Decidendi
The court found that the petitioner, having filed the petition, bore the heavier burden to move the court for hearing and comply with directions. The record showed repeated non-attendance and non-compliance by both parties, but especially the petitioner. However, considering the right to be heard and the gravity of the issues raised, the court exercised discretion to grant the petitioner one final opportunity to prosecute her claim. The court directed all parties who had not complied with previous directions to do so within 30 days, with a mention date set to confirm compliance. The court emphasized that failure to comply would likely result in dismissal, but allowed the matter to proceed...
Court Disposition
Petitioner granted one final opportunity to prosecute the claim; directions issued for compliance within 30 days; mention date set to confirm compliance.
Orders
- Petitioner and all parties yet to comply with court directions to do so within 30 days.
- Matter to be mentioned on 19th January 2022 to confirm compliance and for further directions.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CONSITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO.454 OF 2018
PERISTER KWAMBOKA OMWENGA
T/A P. K. OMWENGA AND ASSOCIATES ……..…..... PETITIONER/APPLICANT
VERSUS
DIRECTOR CRMINAL INVESTIGATION DEPARTMENT......1ST RESPONDENT
CHINA ROAD AND BRIDGE CORPORATION LIMITED.…...2ND RESPONDENT
KITEI PETER …………………………………………...………... 3RD RESPONDENT
AND
JOHN MERCERINO KIMATHI ………...……….………. 1ST INTERSTED PARTY
THE LAW SOCIETY OF KENYA ……….……………… 2ND INTERESTED PARTY
RULING
1. This matter came up for mention on 31st May, 2021 before Justice Korir when both advocates and parties were absent. The court noted that their absence was despite having been served with mention notices. It was therefore directed that a dismissal notice be issued for 26th October, 2021.
2. The matter later came up for mention when both parties were represented including Peter Kitei “A” and “B”.
3. In the meantime the petitioner filed an affidavit dated 27th October, 2021 in response to the dismissal notice. She explains how she and her advocate were unable to join the virtual hearing platform, due to internet challenges. She pleads for another chance to be heard.
4. In response Mr. Agwara who had not been served with the affidavit, said this matter had been dismissed before, and same issues raised. He called on the court to dismiss the petition since the prosecution of the matter in issue had progressed. He adds that timelines had been issued but were not complied with.
5. In a rejoinder M/s Omwenga for the petitioner admitted that the matter had been dismissed for non-attendance and not want of prosecution. She submitted that the criminal case which touches on over 300 persons was yet to be prosecuted. She prayed for a chance to be heard.
6. I have perused this file and note that the petition was filed on 14th December, 2018. It was dismissed for want of prosecution on 16th January, 2020 and not non-attendance as claimed by M/s Omwenga for the petitioner.
7. It is not clear what happened on 19th March, 2020 when the matter was to come up for hearing. The record shows that the matter next came up on 9th July, 2020 when both counsel were absent and it was to be mentioned on18th November, 2020. On the said date only counsel for the 1st respondent was present and another mention date set for 1st March 2021. On this date all Advocates and the parties were absent and a further mention date was given for 31st May, 2021.
8. Again on 31st May, 2021 none of the parties nor advocates attended court. The court directed for a dismissal notice to issue. It is that Notice that the court is now addressing.
9. The analysis above shows that both parties have not been serious about this matter. However, it is the petitioner who carries the heavier burden because it is her who filed this petition and brought all the other parties to court. She is the one who should move the court for purposes of hearing her case.
10. Directions were issued by the court on 3rd December, 2019 on how the petition should proceed. From the record it is only the 2nd and 3rd respondents (Peter Ketei B) who have filed submissions. I am giving the petitioner onelast chance to prosecute her claim. Those who are yet to comply with the court directions to do so within 30 days.
11. Mention on 19. 01. 2022 to confirm compliance and further directions. As earlier directed by the court Peter Kitei “A” & “B” should be present on the said date. These directions to be served by the petitioner on all parties.
Orders accordingly.
Delivered online, signed and dated this 18th day of November, 2021 in open court at Milimani Nairobi.
H. I. ONG’UDI
Judge of the High Court