[2017] KEHC 8479 (KLR)
The court found that the respondent had not taken any steps to prosecute the application dated 23rd June 2014, and had conceded disinterest in pursuing it. The failure to withdraw the application was due to inadvertence by the respondent’s advocate’s clerk. Given the lack of prosecution and the respondent’s...
Source-derived case information.
- Citation
- [2017] KEHC 8479 (KLR)
- Parties
- Appellant: Simon Maina Muhoro; Respondent: Edward Mungai; Respondent: Paul Mburu Muhoho; Respondent: John Muigai Njora
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 512 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application allowed with costs to the applicant
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Stay of Execution, Leave to Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Maina Muhoro
Appellant
Edward Mungai
Respondent
Paul Mburu Muhoho
Respondent
John Muigai Njora
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the application dated 23rd June 2014 should be dismissed for want of prosecution.
- 2 Whether costs should be awarded to the applicant.
Ratio Decidendi
The court found that the respondent had not taken any steps to prosecute the application dated 23rd June 2014, and had conceded disinterest in pursuing it. The failure to withdraw the application was due to inadvertence by the respondent’s advocate’s clerk. Given the lack of prosecution and the respondent’s concession, the court held it was fair and just to allow the application for dismissal for want of prosecution and to award costs to the applicant.
Court Disposition
application allowed with costs to the applicant
Orders
- The application dated 16th August 2016 is allowed.
- The application dated 23rd June 2014 is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL DIVISION
HIGH COURT CIVIL MISC. APPL. NO. 512 OF 2014
SIMON MAINA MUHORO..................................APPELLANT/ RESPONDENT
VERSUS
EDWARD MUNGAI.......................................1ST RESPONDENT/ APPLICANT
PAUL MBURU MUHOHO...........................2ND RESPONDENT/ APPLICANT
JOHN MUIGAI NJORA...............................3RD RESPONDENT/ APPLICANT
RULING
1. The Notice of Motion dated 16th August, 2016 seeks orders that the application dated 23rd June 2014 be dismissed for want of prosecution.
2. It is stated that since the filing of the application dated 23rd June, 2014 which sought orders for stay of Execution and leave to appeal out of time, the Respondent has failed to prosecute the same and the decretal sum has been settled.
3. The application is opposed. It is stated in the replying affidavit that the decretal sum has been settled. That the notice of withdrawal of the application dated 23rd June, 2014 was prepared and executed but that due to the inadvertence of the advocate’s clerk, the said notice was not filed.
4. During the hearing of the application, there was no appearance for the Respondent though served. The Applicant’s counsel relied on the affidavit in support. I have considered both the application and the reply to the same. The Respondent has conceded that they are no longer interested in the application. Indeed if it was not for the inadvertence of the Respondent’s Advocates clerk, the application in question would have been withdrawn way back in the year 2014. Since the Respondent had not taken any step in the matter, it is only fair that they meet the Applicant’s costs.
5. The Application is allowed with costs to the Applicant.
Date, signed and delivered at Nairobi this 16th day of Feb., 2017
B. THURANIRA JADEN
JUDGE