[2016] KEHC 6416 (KLR)
The court found that the defendant had demonstrated that more than one year had elapsed since the close of pleadings without any action by the plaintiff to prosecute the case. The plaintiff was properly served with the application for dismissal and failed to respond or attend court to explain the delay. The...
Source-derived case information.
- Citation
- [2016] KEHC 6416 (KLR)
- Parties
- Plaintiff: Peter Omolo Agak; Defendant: Gilbert Onyango Omolo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 228 of 2014
- Procedural Posture
- Land Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Service of Process, Pleadings Closure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Omolo Agak
Plaintiff
Gilbert Onyango Omolo
Defendant
Procedural Posture
Land Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1) and 3 of the Civil Procedure Rules.
- 2 Whether the plaintiff took any steps to prosecute the case after pleadings closed.
- 3 Whether the defendant's application for dismissal is merited.
Ratio Decidendi
The court found that the defendant had demonstrated that more than one year had elapsed since the close of pleadings without any action by the plaintiff to prosecute the case. The plaintiff was properly served with the application for dismissal and failed to respond or attend court to explain the delay. The application was unopposed and merited. The court exercised its discretion under Order 17 Rule 2(1) and 3 of the Civil Procedure Rules to dismiss the suit for want of prosecution, as the plaintiff had not shown any reason for the delay or taken any steps to advance the matter.
Court Disposition
suit dismissed for want of prosecution
Orders
- The plaintiff's suit commenced through the plaint dated 24th July 2014 is dismissed with costs for want of prosecution.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
ENVIRONMENT & LAND COURT
ELC CASE NO.228 OF 2014
PETER OMOLO AGAK........................................................PLAINITFF
VERSUS
GILBERT ONYANGO OMOLO............................................DEFENDANT
RULING
Gilbert Onyango Omolo, the Defendant filed the notice of motion dated 20th November 2015 seeking to have the suit filed by the plaintiff dismissed with costs for want of prosecution. The plaintiff, Peter O. Agak, had commenced this suit through the plaint dated 24th July 2014 and filed in court on 9th September, 2014. The Defendant was served with the summons and filed the memorandum of appearance through M/S Nyatundo & Co. Advocate dated 17th September 2014 on the same date. The Defendant filed the defence, list of documents and statements on 8th October 2014 and served the plaintiff on 18th October 2014 as confirmed by George Ndira in his affidavit of service sworn on 29th January 2016.
The notice of motion dated 20th November 2015 was served on the plaintiff on 10th December 2015 as confirmed in affidavit of service sworn by George Ndira on 18th
January 2016. The notice of motion indicated the hearing date as 19th January 2016. The plaintiff did not attend the court for hearing of the application and had not filed any replying affidavit or grounds of opposition to the notice of motion. M/S Kasiara advocate for the Defendant submitted that more than one year had passed from the time the pleadings had closed to the time the application was filed and that plaintiff had not taken any steps to prosecute this case. The court then adjourned the hearing to 8th February 2016 to allow counsel confirm the dates of service of the defence and other documents to the plaintiff. The affidavits of service refered to above were subsequently filed.
The court has considered the grounds on the application and submissions by counsel and come to the following determinations:
a) That the application is brought underOrder 17 Rule 2 (1) and 3 of Civil Procedure Ruleswhich allows a party to move the court for dismissal order where one year passes from the last action without any steps towards prosecuting the case.
b) That the pleadings in this case closed after the filing and service of the Defendant's defence, list of documents and statements. The documents were served on the plaintiff on 18th October 2014. He did not file, a reply to the defence.
c) That the plaintiff, though served with the notice of motion dated 20th November 2015 has not filed any documents in response nor come to court to explain why he has not taken any steps to prosecute his case for over one year from the date the
pleadings closed. The Defendant's application therefore stands unopposed and has merits.
That the Defendant's notice of motion dated 20th November 2015 is allowed as prayed and the plaintiff's suit commenced through the plaint dated 24th July 2014 is dismissed with costs for want of prosecution.
It is so ordered.
SM. KIBUNJA
ENVIRONMENT & LAND – JUDGE
Dated and delivered this9TH day of MARCH 2016
In presence of;
Plaintiff Absent
Defendant Absent
Counsel Mrs. Stausi for Nyatundo & Co Advocate for Defendant.
SM. KIBUNJA
ENVIRONMENT & LAND – JUDGE
9/3/2016
9/3/2016
S.M. Kibunja J.
Oyugi Court Assistant
Parties absent
Mrs Stausi for Nytundo for Defendant/Applicant
Court: Ruling Delivered in Open court in presence of Mrs Stausi for Nyatundo for Defendant.
SM. KIBUNJA
ENVIRONMENT & LAND – JUDGE
9/3/2016