[2008] KEHC 1893 (KLR)
The court found that the plaintiffs failed to take any steps to prosecute the suit after the issuance of injunction orders in March 2005. The delay of over three years was deemed inordinate and unjustified, especially in a matter involving public interest and allegations of unlawful grabbing of land set aside for...
Source-derived case information.
- Citation
- [2008] KEHC 1893 (KLR)
- Parties
- Plaintiff: Stephen Kamunge Wainaina; Plaintiff: Joseph Njoroge Kimani; Plaintiff: Apulina Mwemba Kirombo; Defendant: Patrick Mulili
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 117 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Legal Topics
- Dismissal for Want of Prosecution, Public Land Grabbing, Injunctions, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kamunge Wainaina
Plaintiff
Joseph Njoroge Kimani
Plaintiff
Apulina Mwemba Kirombo
Plaintiff
Patrick Mulili
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 due to inaction by the plaintiffs.
- 2 Whether the plaintiffs took any steps to prosecute the suit after the grant of injunction.
- 3 Whether the defendant is entitled to costs upon dismissal of the suit.
Ratio Decidendi
The court found that the plaintiffs failed to take any steps to prosecute the suit after the issuance of injunction orders in March 2005. The delay of over three years was deemed inordinate and unjustified, especially in a matter involving public interest and allegations of unlawful grabbing of land set aside for community use. The court emphasized that it is the duty of parties to diligently prosecute their cases and that failure to do so warrants dismissal for want of prosecution. The court also noted that, had the defendant not applied, it would have been within the court's power to dismiss the suit suo moto under the three-year rule. Accordingly, the suit was dismissed with costs to...
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 117 of 2005
STEPHEN KAMUNGE WAINAINA………………….. 1ST PLAINTIFF
JOSEPH NJOROGE KIMANI ……………………….. 2ND PLAINTIFF
APULINA MWEMBA KIROMBO ……………………. 3RD PLAINTIFF
VERSUS
PATRICK MULILI ………………..…………………….. DEFENDANT
RULING
I: APPLICATION FOR DISMISSAL OF
SUIT FOR LACK OF PROSECUTION
DATED NOTICE OF MOTION 28. 1.2008.
1. The three plaintiffs respondents herein filed suit on
4 February 2005. The three are alleged to be two “Scrupulous”
businessmen and one officer of the Lands Department.
2. They are alleged to have grabbed unlawfully land that had been set aside for public use as a community centre.
3. The defendant Patrick Mulili was councilor at the time the suit was filed. In his defence he states that the land was set aside for public use. This defence was filed on 27 May 2005.
4. On 24 June 2005 the pleading was closed. Since February 2005 no action on this case was made. The applicant/defendant applies to have this suit dismissed.
Application 28 January 2008
5. The position of this suit is that plaintiff 1 ,2 and 3 had been issued with an injunction orders till the finalization of the suit Mugo J (10 March 2005). Since the injunction was issued there was no steps taken to conclude this suit.
6. I note that this is a public interest case that should have been diligently protected. It has not. If the defendant applicant had not made this application then the court would have generally struck out and or dismissed the suit under the three year tule, Suo moto.
7. The grounds of dismissal is that no steps were taken to finalize this matter. The 1 – 3 plaintiff were served through their advocates and are absent. (Order III Civil Procedure Rules on service upon advocates on record applies).
I hereby hold that this suit be dismissed with costs to the defendants for non prosecution.
DATED THIS 8TH DAY OF MAY 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
E.K. Mutua instructed by E.K. Mutua & Co. Advocates for the defendant/applicant-present
M/s Gichigi Burugu instructed by Gichigi Burugu & Co. Advocates for the plaintiff/respondent – present