[2010] KEHC 3748 (KLR)
The court found that the applicant had demonstrated sufficient cause for the delay in prosecuting the application. The Chief Justice's directive, which required all judicial review applications to be heard in Nairobi, made it impossible for the applicant to proceed in Kitale between 2007 and 2008. Furthermore, the...
Source-derived case information.
- Citation
- [2010] KEHC 3748 (KLR)
- Parties
- Applicant: Republic; Applicant: Moses Kagiri Muchori; Respondent: Chairman – Sinyerere L.D.T; Respondent: Mary Nyambura Chege
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 68 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined; time granted to applicant to prosecute.
- Judges
- CA Ombija
- Legal Topics
- Dismissal for Want of Prosecution, Judicial Review Procedure, Court Directives, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Moses Kagiri Muchori
Applicant
Chairman – Sinyerere L.D.T
Respondent
Mary Nyambura Chege
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether sufficient cause has been shown to prevent dismissal of the suit for want of prosecution.
- 2 Whether the Chief Justice's directive and post-election violence justified the delay in prosecuting the application.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for the delay in prosecuting the application. The Chief Justice's directive, which required all judicial review applications to be heard in Nairobi, made it impossible for the applicant to proceed in Kitale between 2007 and 2008. Furthermore, the applicant was displaced during the post-election violence, further contributing to the delay. The court was satisfied that these reasons justified the inactivity in the file and exercised its discretion to allow the applicant additional time to prosecute the application. The court granted the applicant six months to fast track the hearing, failing which the suit would stand...
Court Disposition
Application for dismissal for want of prosecution declined; time granted to applicant to prosecute.
Orders
- The applicant is granted six (6) months to fast track the application for hearing.
- In default of prosecution within six months, the suit shall stand dismissed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
Miscellaneous Civil Application 68 of 2000
REPUBLIC.....................................................APPLICANT
MOSES KAGIRI MUCHORI
VERSUS
CHAIRMAN – SINYERERE L.D.T)
MARY NYAMBURA CHEGE )..........RESPONDENTS
R U L I N G
By a Notice to Show Cause dated 30th October, 2009, the honourable court notified the parties herein that the suit would be dismissed for want of prosecution, pursuant to the provisions of Order XV1 Rule 2(1) of the Civil Procedure Rules, unless cause be shown why the same should not be dismissed.
In response to the NTSC, Peter Kiarie Ndarwa Advocate for and on behalf of the applicant, swore an affidavit on 30th November, 2009.
In the said affidavit, he averred that he was conversant with the facts of the case. That the application herein was listed for hearing on 26th April, 2006 and 4th January 2006 but the same did not take off.
Subsequently, the Chief Justice of the Republic of Kenya issued a directive in Kenya Gazette Notice No.300 dated 10th January 2006. The directive was to the effect that all judicial review applications be heard only in Nairobi Law Courts.
By reason of the directive of the Chief Justice aforesaid the application herein could not be prosecuted in the year 2007 and 2008.
The said directive had been lifted. The applicant is ready and willing to prosecute the application.
What compounded the problem was the fact that the ex-parte applicant was also a victim of the post-election violence and was displaced. It took awhile for him to be traced.
Last but not least, that the subject of the application, is very emotive, hence the court should exercise its jurisdiction to give the ex-parte applicant a chance to prosecute this application to its legal conclusion.
I have heard the advantage of perusing the court record. It is apparent that this file has been inactive for a long time. However, I take judicial notice of the fact that the Hon. Chief Justice issued a directive in Gazette Notice No.300 dated 10th January 2007. This disabled the applicant to proceed with the prosecution of this application. The said directive was rescinded sometime in the year 2008.
Order XV1 Rule 2(1) of the Civil Procedure Rules provides:
“In any suit in which no application has been made
Or step taken by either party for one year, the court may give notice in writing to the parties
to show cause why the suit should not be
dismissed, and if cause is not shown to its
satisfaction, may dismiss the suit”.
In the premises, I find as a fact that cause has been shown to the satisfaction of the court why the application stayed in limbo between 2007 and 2009.
Accordingly, I give the applicant six (6) months to fast track the application for hearing. In default the suit shall stand dismissed.
Dated and delivered at Kitalethis1stday of FEBRUARY2010.
N.R.O OMBIJA
JUDGE
Mr Njoroge for Kiarie for Ex-parte Applicant