[2021] KEHC 3739 (KLR)
The court found that the applicant failed to demonstrate genuine interest in prosecuting the application dated 25/5/2021. The applicant's counsel provided inconsistent explanations regarding contact with the respondent's counsel and failed to provide any evidence on oath to support claims of attempted service or...
Source-derived case information.
- Citation
- [2021] KEHC 3739 (KLR)
- Parties
- Applicant: Rozan Achieng Oula; Respondent: George Onyango Ochola
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case E017 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Dismissal for Want of Prosecution
- Outcome
- application dismissed for want of prosecution
- Judges
- RE Aburili
- Legal Topics
- Dismissal for Want of Prosecution, Certificate of Urgency, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rozan Achieng Oula
Applicant
George Onyango Ochola
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the application dated 25/5/2021 should be dismissed for want of prosecution.
- 2 Whether the applicant has demonstrated interest in prosecuting the application.
- 3 Whether there was proper service on the respondent.
Ratio Decidendi
The court found that the applicant failed to demonstrate genuine interest in prosecuting the application dated 25/5/2021. The applicant's counsel provided inconsistent explanations regarding contact with the respondent's counsel and failed to provide any evidence on oath to support claims of attempted service or inability to trace the respondent. The court concluded that the applicant was using the court process for purposes other than achieving justice and that justice requires expeditious disposal of matters. Consequently, the application was dismissed for want of prosecution.
Court Disposition
application dismissed for want of prosecution
Orders
- The application dated 25/5/2021 is dismissed for want of prosecution.
- No orders as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISCELLANEOUS CIVIL CASE NO. E017 OF 2021
ROZAN ACHIENG OULA.......................................APPLICANT
VERSUS
GEORGE ONYANGO OCHOLA.........................RESPONDENT
RULING
1. On 28/7/2021 when this matter came up for directions as it had been filed under Certificate of Urgency, Ms. Oyoko counsel for the applicant appeared virtually and informed the court that she had been contacted by Ms. Aoko advocate for the Respondent the previous day saying that the latter was unable to attend he virtual court as they had travelled to Kisii to attend to other matters and prayed for another hearing date. She was directed to serve the Respondent as there was no evidence of service, for an oral hearing today.
2. Today, Ms. Oketch has appeared holding brief for Ms. Oyoko and claims that Ms. Oyoko is indisposed and was unable to trace the Respondent and that the Respondents’ advocates closed offices in Nairobi and cannot be traced.
3. This application was filed on 17/6/2021 under Certificate of urgency when this court was on leave. The applicants’ counsel is obviously lying to this court when she says on 28/7/2021 that she had been in touch with the Respondents counsel but today, the Respondent and his counsel have not been traced because there is nothing on oath to support that assertion.
4. The Applicant in my view is not interested in the disposal of this application and wants to use the court for his own purposes other than to achieve justice, for, justice shall be administered without delay.
5. For failure to prosecute the application dated 25/5/2021 under Certificate of urgency, the same is hereby dismissed for want of prosecution with no orders as to costs.
6. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 28TH DAY OF SEPTEMBER 2021
R.E. ABURILI
JUDGE