[2018] KEELC 761 (KLR)
The court found that there was no evidence the respondent was served with the application for dismissal prior to the hearing date. Both parties were present in court on the hearing date set by the court, and it was only then that the respondent was served. The court agreed with the respondent that the application...
Source-derived case information.
- Citation
- [2018] KEELC 761 (KLR)
- Parties
- Plaintiff: Said Mubarak Awadh; Defendant: Gilbert Mwaganda; Defendant: Francis Gambo Begambo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case Case197 of 2008
- Procedural Posture
- Notice of Motion / Ruling on Application to Dismiss Suit for Want of Prosecution
- Outcome
- application dismissed
- Judges
- NA Matheka
- Legal Topics
- Dismissal for Want of Prosecution, Abuse of Court Process, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Mubarak Awadh
Plaintiff
Gilbert Mwaganda
Defendant
Francis Gambo Begambo
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Dismiss Suit for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the application for dismissal constitutes an abuse of the court process.
- 3 Whether the respondent was properly served with the application.
Ratio Decidendi
The court found that there was no evidence the respondent was served with the application for dismissal prior to the hearing date. Both parties were present in court on the hearing date set by the court, and it was only then that the respondent was served. The court agreed with the respondent that the application was an abuse of the court process, particularly as the matter had already been fixed for hearing and the respondent was ready to proceed. The lack of proper service and the timing of the application led the court to dismiss the application for want of merit.
Court Disposition
application dismissed
Orders
- The application to dismiss the suit for want of prosecution is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT IN MOMBASA
ELC CASE NO. 197 OF 2008
SAID MUBARAK AWADH…..….……………..PLAINTIFF/RESPONDENT
VERSUS
GILBERT MWAGANDA
FRANCIS GAMBO BEGAMBO……………..DEFENDANTS/ APPLICANTS
RULING
This Notice of Motion is dated 26th March 2018 and is brought under Section 1A, 1B, 3A and 63 of the Civil Procedure Act and under order 17 Rule 2(3) of the Civil Procedure Rules seeking the following orders;
1. That the suit commenced vide a plaint dated 6th August, 2008 be dismissed for want of prosecution.
2. That costs of this application be provided for.
The Applicant submitted that the suit has taken over 2 years without being fixed for hearing. That the pendency of this matter in court is both prejudicial as well as an otherwise abuse of the court process, hence this application. That no prejudice shall be suffered to any party if this suit is dismissed.
The respondent submitted that this application is an abuse of the court process having been filed in March 2018 after this matter was fixed for hearing. That the plaintiff was in court with three witnesses and was ready to proceed and this application was never served on them. That the plaintiff is old and sickly and is ready to proceed with the matter.
This court has perused the court file and sees no evidence that the respondent was ever served with the application on the dismissal of this matter. Both parties were present in court on the hearing date given by the court. It is in court that the respondent was served with the application. Indeed I agree with the respondent that this application is an abuse of the court process and I dismiss it. Costs to be in the cause.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT MOMBASA IN OPEN COURT THIS 8TH NOVEMBER 2018.
N.A. MATHEKA
JUDGE