[2022] KEHC 12644 (KLR)
The court found that the application dated 2nd March 2017 had not been prosecuted for over four years, and Kenya Pipeline Co. Ltd had shown no intention to proceed with it, even after being served with the dismissal application. The court held that it has jurisdiction to dismiss matters for want of prosecution where...
Source-derived case information.
- Citation
- [2022] KEHC 12644 (KLR)
- Parties
- Applicant: Republic; Defendant: Aruna Kivuvo; Applicant: Kenya Pipeline Company Limited; Interested Party: Delina General Enterprises Limited
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 19 of 2017
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- Application for dismissal allowed; application dated 2nd March 2017 dismissed for want of prosecution; interim stay orders vacated; parties to bear own costs.
- Judges
- GMA Dulu
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Interim Stay Orders, Jurisdiction to Dismiss, Abuse of Court Process
- 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
Republic
Applicant
Aruna Kivuvo
Defendant
Kenya Pipeline Company Limited
Applicant
Delina General Enterprises Limited
Interested Party
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the application dated 2nd March 2017 should be dismissed for want of prosecution due to inaction for over four years.
- 2 Whether the court has jurisdiction to dismiss an application for want of prosecution in criminal or civil proceedings.
- 3 Whether the interim stay orders should be vacated.
Ratio Decidendi
The court found that the application dated 2nd March 2017 had not been prosecuted for over four years, and Kenya Pipeline Co. Ltd had shown no intention to proceed with it, even after being served with the dismissal application. The court held that it has jurisdiction to dismiss matters for want of prosecution where there is undue delay, regardless of whether the proceedings are civil or criminal. Since the applicant failed to take any steps to progress the application and the Interested Party had properly moved the court, the application dated 2nd March 2017 was dismissed for want of prosecution. The interim stay orders were vacated, and each party was ordered to bear its own costs.
Court Disposition
Application for dismissal allowed; application dated 2nd March 2017 dismissed for want of prosecution; interim stay orders vacated; parties to bear own costs.
Orders
- The application dated 2nd March 2017 is dismissed for want of prosecution.
- Interim stay orders granted by this court are hereby vacated.
Full Case Text
Judgment text and source record
34 paragraphs
Republic v Kivuvo & another; Delina General Enterprises Limited (Interested Party) (Miscellaneous Criminal Application 19 of 2017) [2022] KEHC 12644 (KLR) (27 July 2022) (Ruling)
Neutral citation: [2022] KEHC 12644 (KLR)
Republic of Kenya
In the High Court at Makueni
Miscellaneous Criminal Application 19 of 2017
GMA Dulu, J
July 27, 2022
Between
Republic
Prosecutor
and
Aruna Kivuvo
Accused
and
Kenya Pipeline Company Limited
Applicant
and
Delina General Enterprises Limited
Interested Party
Ruling
1. Before me is an application dated 28th May 2021 filed by the Interested Party Delina General Enterprises Ltd.
2. The application was filed under Order 17 Rule 2(3) and Order 51 Rule 1 of the Civil Procedure Rules 2010, and section 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) and seeks the following orders –1)That the application dated 2nd March 2017 be dismissed for want of prosecution.2)That the costs of this application and of the entire application dated 2nd March 2017 be paid by the applicant.
3. The application has grounds on the face of the Notice of Motion that following the filing of the application dated 2nd March 2017 BY Kenya Pipeline Co. Ltd, the court issued orders staying earlier orders given by Hon. G.M Mutiso – Makindu Principal Magistrate on 7th March 2017. That though the said application was fixed for hearing on 11th April 2017, no steps had been taken to prosecute the application for close to 4 years, and in the meantime the applicant (Kenya Pipeline Co. Ltd) has been enjoying the stay orders in Criminal Case No. 1224 of 2012 which has remained unprosecuted.
4. The application was filed with a supporting affidavit sworn on 31st May 2021 by Mark Mutua Mumo advocates, in which it was emphasized that no steps had been take to prosecute the application dated 2nd March 2017 for close to 4 years.
5. The application has been opposed through grounds of opposition dated 18/08/2021 in the following terms –1)The application is frivolous and vexatious.2)The application is an abuse of court process and lacks merit.
6. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by M.M Mutua & company for the interested party and those filed by Munga Kibanga & company for the applicant (Kenya Pipeline Co. Ltd).
7. I have also seen and perused the application dated 2nd March 2017. It sought stay of the orders given in Makindu Mcr. Case No. 1224 of 2012, and also a review of this court’s orders issued on 5th December 2013.
8. This court on 7th March 2017 issued interim stay orders pending the hearing of the said application.
9. It is not in dispute that to date however, the application dated 2nd March 2017 has not been progressed. Even after this application for dismissal of the application dated 2nd March 2017 was filed and served, the applicant (Kenya Pipeline Co. Ltd) has not indicated that it wants to proceed with the said application. Instead they have filed grounds of opposition to the present application.
10. In my view, whether it is criminal or civil proceedings, this court has jurisdiction to dismiss a matter which has unduly delayed and remained pending in court for more than one year, and no progress has been recorded therein, even on the court’s own motion.
11. Coming to the present matter, Notice for the dismissal was served, though initiated by an Interested Party. Kenya Pipeline Co. Ltd has not indicated any interest to progress their application. The Director of Public Prosecutions who should have represented the public interest is not a party to the contest herein.
12. In my view, the Kenya Pipeline Co. Ltd, the applicants in the application dated 2nd March 2017, not having shown any indication that they want to prosecute that application, and more than 4 years having by now lapsed, the application merits being dismissed for want of prosecution.
13. Consequently, I find merits in the application dated 28th May 2021 and dismiss the application dated 2/3/2017. Interim stay orders granted by this court are hereby vacated. Parties will bear their respective costs, as the application was not filed by a party in the original criminal proceedings.
DELIVERED, SIGNED & DATED THIS 27TH DAY OF JULY, 2022, IN OPEN COURT AT MAKUENI................................GEORGE DULUJUDGE