[2010] KEHC 3672 (KLR)
The court found that the Plaintiff had failed to take any steps to prosecute the suit for over three and a half years after filing the originating summons and did not respond to the application for dismissal. The court exercised its discretion under Order 16 rule 5(a) of the Civil Procedure Rules to dismiss the suit...
Source-derived case information.
- Citation
- [2010] KEHC 3672 (KLR)
- Parties
- Plaintiff: Ruth Wairimu Kimotho; Defendant: Mary Murugi Nganga; Defendant: Agnes Njeri; Defendant: Teresiah Wanjiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 702 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Legal Topics
- Adverse Possession, Dismissal for Want of Prosecution, Case Management, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Wairimu Kimotho
Plaintiff
Mary Murugi Nganga
Defendant
Agnes Njeri
Defendant
Teresiah Wanjiru
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 under Order 16 rule 5(a) of the Civil Procedure Rules.
- 2 Whether the Plaintiff has demonstrated any intention to prosecute the suit or remedy the default.
Ratio Decidendi
The court found that the Plaintiff had failed to take any steps to prosecute the suit for over three and a half years after filing the originating summons and did not respond to the application for dismissal. The court exercised its discretion under Order 16 rule 5(a) of the Civil Procedure Rules to dismiss the suit for want of prosecution, noting that the Plaintiff had abandoned the matter and had not demonstrated any intention to remedy the default. The purpose of the rule is to allow the court to clear cases where parties have lost interest and to relieve defendants from the burden of dormant cases.
Court Disposition
suit dismissed for want of prosecution
Orders
- The originating summons is dismissed with costs for want of prosecution.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 702 of 2005
RUTH WAIRIMU KIMOTHO ………………………………PLAINTIFF
AND
MARY MURUGI NGANGA……………………………1ST DEFENDANT
AGNES NJERI…………………………………………..2ND DEFENDANT
TERESIAH WANJIRU …………………..…………….3RD DEFENDANT
R U L I N G
The Plaintiff filed this suit by way of originating summons on 8th June, 2005 seeking the determination that she had acquired land parcel No. LOC.8/YAMUGWE/858 by adverse possession having been in continuous and uninterrupted possession of the same for a period in excess of 12 years. On 14th July, 2005 the 1st Defendant filed a replying affidavit on her own and on behalf of the 2nd and 3rd Defendants denying the claims in the summons and supporting affidavit. Since then, the Plaintiff has not taken any step to have directions taken or the suit set down for hearing. On 10th February, 2009 the Defendants filed this application under Order 16 rule 5(a) and Order 35 rule 12 of the Civil Procedure Rules to have the suit dismissed with costs for want of prosecution. The application was served but elicited no response.
About 3½ years had passed when the application was filed. The Plaintiff just filed the summons and then abandoned the matter. She did not respond to the application and one cannot say, therefore, that she wants to remedy her default. The purpose of Order 16 rule 5 (a) of the Civil Procedure Rules is to provide the court with a discretion to disencumber itself of cases in which the parties appear to have lost interest and also to relief the Defendants of the burden of such cases hanging around their necks. I order the summons dismissed with costs for want of prosecution.
DATED AND DELIVERED AT NAIROBI
THIS 10TH DAY OF MARCH 2010
A. O. MUCHELULE
J U D G E