[2012] KEHC 3876 (KLR)
The court found that no step had been taken in the suit for over three years, and the plaintiff, as the party who filed the suit, bore the responsibility to move the matter forward. While the supporting affidavit was sworn by the advocate rather than the party, the court accepted it as the matters deponed were...
Source-derived case information.
- Citation
- [2012] KEHC 3876 (KLR)
- Parties
- Plaintiff: Rina Shem Mbaye; Defendant: Fredrick L. Namusende; Defendant: Simon Akala Kaitano; Defendant: Land Registrar, Kakamega
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 34 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined; plaintiff granted sixty days to comply and fix hearing.
- Legal Topics
- Dismissal for Want of Prosecution, Affidavit Practice, Case Management, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rina Shem Mbaye
Plaintiff
Fredrick L. Namusende
Defendant
Simon Akala Kaitano
Defendant
Land Registrar, Kakamega
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction by the plaintiff for over three years.
- 2 Whether an affidavit in support of the application sworn by the advocate rather than the party is proper.
- 3 Whether the plaintiff should be given an opportunity to comply with the new Civil Procedure Rules and fix the case for hearing.
Ratio Decidendi
The court found that no step had been taken in the suit for over three years, and the plaintiff, as the party who filed the suit, bore the responsibility to move the matter forward. While the supporting affidavit was sworn by the advocate rather than the party, the court accepted it as the matters deponed were within the advocate's knowledge, though it discouraged the practice. Recognizing the emotive nature of land disputes and the need for substantive justice over procedural technicalities, the court declined to dismiss the suit outright. Instead, it granted the plaintiff sixty days to comply with the new Civil Procedure Rules and to fix the case for hearing, failing which the suit...
Court Disposition
Application for dismissal for want of prosecution declined; plaintiff granted sixty days to comply and fix hearing.
Orders
- Plaintiff/Respondent to comply with the new Civil Procedure Rules and fix the case for hearing within sixty days.
- Costs of the application awarded to the 1st and 2nd Defendants/Applicants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL CASE 34 OF 2006
RINA SHEM MBAYE........................................PLAINTIFF/RESPONDENT
VERSUS
FREDRICK L. NAMUSENDE......................1ST DEFENDANT/APPLICANT
SIMON AKALA KAITANO.........................2ND DEFENDANT/APPLICANT
LAND REGISTRAR, KAKAMEGA.................................3RD DEFENDANT
RULING
The application by way of Notice of Motion dated 21. 7.2011 seeks orders for dismissal of the suit herein for want of prosecution.
The application is supported by the annexed affidavit of ALUBALA A. ANDAMBI, the counsel for the 1st and 2nd Defendants/Applicants.
The main ground of the application is that the Plaintiff/Respondent has shown no interest in prosecuting this matter nor taken any step to list the case for hearing for more than three years.
The application is opposed to as per the replying affidavit by Mrs. Rina Shem Mbaye, the Plaintiff/Respondent. In the said affidavit, the Respondent laments about the affidavit in support being sworn by the applicant’s advocate and not by the party and that 1st and 2nd Defendants/Applicants have not complied with the new rules under the Civil Procedure Act Cap 21 Laws of Kenya. The Respondent saw the application as a means of causing delay by the filing a multiplicity of applications.
I have considered the application and the reply to the same. The 3rd Defendant/Respondent was not present during the hearing of the application although he was duly served.
It is apparent from the record that no step has been taken in this suit for the last three years. The Plaintiff/Respondent is the one who filed this suit and therefore ought to be the prime mover when it comes to the fixing of hearing dates. The same applies to the compliance with the new Civil Procedure Rules. The 1st and 2nd Defendants/Applicants were therefore at liberty to apply for the dismissal of the suit.
Although the affidavit in support of the application has been sworn by the advocate and not by the party, the matters deponed on are within the advocate’s knowledge. This is however a trend that ought to be discouraged. An advocate would be put in an awkward situation if the opposing party applied to cross-examine him as the deponent.
The subject matter of this suit is a parcel of land. This is an emotive subject which would not be conclusively determined by way of technicalities of procedure.
I will therefore give the Respondent sixty days within which to comply with the new Civil Procedure rules and to fixed the case for hearing.
Costs of this application to the 1st and 2nd Defendants/Applicants.
Delivered, dated and signed at Kakamega this 22nd day of March , 2012
B. THURANIRA JADEN
J U D G E