[2013] KEHC 6496 (KLR)
The court found that the applicant failed to provide any credible or factual explanation for the seven-year delay in prosecuting the suit. The bare statement that the court file was missing was unsupported, and the claim of lack of knowledge of the dismissal proceedings was not substantiated in the affidavit. In the...
Source-derived case information.
- Citation
- [2013] KEHC 6496 (KLR)
- Parties
- Applicant: Republic; Respondent: The Chairman, Land Disputes Tribunal, Gatundu North; Applicant: James Mwangi Muchiri; Interested Party: George Mugo Gitau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 70 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- DAS Majanja
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Chairman, Land Disputes Tribunal, Gatundu North
Respondent
James Mwangi Muchiri
Applicant
George Mugo Gitau
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the court should set aside the order of dismissal for want of prosecution and reinstate the suit.
- 2 Whether the applicant provided sufficient explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the applicant failed to provide any credible or factual explanation for the seven-year delay in prosecuting the suit. The bare statement that the court file was missing was unsupported, and the claim of lack of knowledge of the dismissal proceedings was not substantiated in the affidavit. In the absence of a factual basis to exercise discretion, and considering the need for diligent prosecution to avoid prejudice to the respondent, the court declined to set aside the dismissal order and dismissed the application with costs.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 21st February 2013 is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIAMANI LAW COURTS
JUDICIAL REVIEW DIVISION
MISC. APPL. NO. 70 OF 2005
BETWEEN
REPUBLIC ...................................................................APPLICANT
AND
THE CHAIRMAN, LAND DISPUTES TRIBUNAL,
GATUNDU NORTH.................................................RESPONDENT
GEORGE MUGO GITAU..........................INTERESTED PARTY
EX-PARTE
JAMES MWANGI MUCHIRI
RULING
The Notice of Motion dated 21st February 2013 seeks to set aside the order of dismissal for want of prosecution made on 7th February 2012. Whether or not to reinstate the suit is a matter for the court’s discretion to be exercised based on specific facts brought before the court.
I have considered the application and the affidavit sworn by James Muchiri sworn on 21st February 2012 and he does not explain why the suit has remained unprosecuted for a period of seven years. The statement made by counsel that the court file was not to be found is a bare statement without foundation. The argument that the petitioner had no knowledge of the dismissal proceedings is also not set out in the deposition.
It is clear that there is no factual basis upon which I can exercise my discretion. Justice looks both ways and even where a person has a cause of action, justice demands that the case is prosecuted diligently and without delay so that the other party is not prejudiced.
I am unable to disturb the dismissal order. The Notice of Motion dated 21st February 2013 is dismissed with costs.
DELIVERED and DATED at NAIROBI this 7th August 2013
D.S. MAJANJA
JUDGE
Mr Njoroge instructed by Muturi Njoroge and Company Advocates for the ex-parte applicant
Mr Wandai instructed by Karuga Wandai and Company Advocates for the interested party.