[2009] KEHC 1447 (KLR)
The court held that the application to dismiss the suit for want of prosecution was untenable because the plaintiff had died and therefore could not have taken any steps to set the suit down for hearing. The defendant's counsel was aware of the plaintiff's death, and the record confirmed this fact. As such, the...
Source-derived case information.
- Citation
- [2009] KEHC 1447 (KLR)
- Parties
- Plaintiff: Safania Arap Chirchir; Defendant: Lawrence Mugala Tsikhanda
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 3 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- JL Osiemo
- Legal Topics
- Dismissal for Want of Prosecution, Death of Party, Steps in Prosecution, Application for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safania Arap Chirchir
Plaintiff
Lawrence Mugala Tsikhanda
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution where the plaintiff is deceased.
- 2 Whether the defendant's application for dismissal is tenable given the plaintiff's death.
Ratio Decidendi
The court held that the application to dismiss the suit for want of prosecution was untenable because the plaintiff had died and therefore could not have taken any steps to set the suit down for hearing. The defendant's counsel was aware of the plaintiff's death, and the record confirmed this fact. As such, the basis for the application was invalid, and the application was dismissed.
Court Disposition
application dismissed
Orders
- The application to dismiss the suit for want of prosecution is dismissed.
- Costs to be costs in the suit.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Case 3 of 2004
SAFANIA ARAP CHIRCHIR...............................PLAINTIFF
VERSUS
LAWRENCE MUGALA TSIKHANDA..........DEFENDANT
RULING
Before me is an application by way of Notice of Motion brought under Order XVI Rule 5 (d) of the Civil Procedure Code in which the Defendant is seeking orders that the Plaintiff’s suit be dismissed for want of prosecution. In support of the application B. O. MANANI Counsel for the Defendant has sworn an affidavit giving grounds. The main ground for the application is that the Plaintiff has taken no step to have the suit set down for hearing.
Mr. Choge Counsel appearing for the Plaintiff in opposing the application submitted that the Defendant’s application is misconceived since the Plaintiff had passed away on 22nd January, 2007 and in the circumstances he could not have taken steps to have the suit set down for hearing. This fact was made known to the Defendant’s Counsel way back in the year 2008. On perusal of the record it shows that when this application came for hearing on 18th June, 2008 before Ibrahim Judge, Counsel for the Defendant is shown to have informed the Court that the Plaintiff was already dead.
That being the position this application that the suit be dismissed because the Plaintiff has taken no step to set the suit down for hearing is not tenable and is dismissed.
Costs to be costs in the suit.
DELIVERED AND DATED AT ELDORET THIS 28TH DAY OF OCTOBER, 2009.
J. L. A. OSIEMO
JUDGE