[2003] KEHC 573 (KLR)
The court found that the plaintiff had satisfactorily demonstrated continued interest in prosecuting the suit and that the delay was occasioned by intervening government notices regarding compulsory acquisition of the suit property and ongoing settlement negotiations. These factors constituted sufficient cause to...
Source-derived case information.
- Citation
- [2003] KEHC 573 (KLR)
- Parties
- Plaintiff: Telkom Kenya Limited; Defendant: Mohamed Omar Haji
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 127 of ??
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs to the plaintiff
- Legal Topics
- Adverse Possession, Dismissal for Want of Prosecution, Limitation of Actions, Compulsory Acquisition, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Telkom Kenya Limited
Plaintiff
Mohamed Omar Haji
Defendant
Procedural Posture
Civil Suit / 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 of the Civil Procedure Rules.
- 2 Whether the plaintiff has demonstrated sufficient interest and diligence in prosecuting the suit despite delays.
- 3 Whether intervening government notices and ongoing negotiations justified the delay in prosecution.
Ratio Decidendi
The court found that the plaintiff had satisfactorily demonstrated continued interest in prosecuting the suit and that the delay was occasioned by intervening government notices regarding compulsory acquisition of the suit property and ongoing settlement negotiations. These factors constituted sufficient cause to excuse the delay. Consequently, the application for dismissal for want of prosecution was dismissed, and costs were awarded to the plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application dated 6th June 2003 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO.127 OF 2000
TELKOM KENYA LIMITED ………………………..……….. PLAINTIFF
VERSUS
MOHAMED OMAR HAJI ……………………………….. DEFENDANTS
R U L I N G
TELCOM KENYA LTD (the plaintiff) instituted this suit against MOHAMED OMAR HAJI and nine others (the defendants) through an originating summons dated 28th February 2000 under Sections 7, 17, 37 and 38(1) of the Limitation of Actions Act Cap.22 Laws of Kenya, seeking an order that it had become entitled by adverse possession of over twelve (12) years to all that piece of land measuring 57. 0 acres registered in the Registry of Titles at Mombasa as C.R.7277/1 and comprised in Plot No.228n Mambrui/Malindi (the suit property). As a follow up, the plaintiff sought to be registered as the sole proprietor of the suit property, a declaration that the defendants’ title to the suit property is extinguished and that the defendants do execute a Transfer of the suit property to the plaintiff, in default the Deputy Registrar be authorised to sign the relevant papers on their behalf.
The Notice of Motion now before the court is one filed on 10th June 2003 seeking the dismissal of this suit for want of prosecution under Order 16 Rule 5 of the Civil procedure Rules.
In a supporting affidavit Mr. Mohamed Faki Khatib Advocate acting for the defendants, deponed that the suit came up for mention last on 26th June 2002 and ever since neither the plaintiff nor its advocates have set it down for hearing or taken any step to have it finalised.
The application is opposed by the plaintiff and reliance is placed on the Replying affidavit filed on 21st June 2003 by Mr. Paul Bongo Jilani, the Plaintiff’s Company Secretary/Chief Legal Officer, who has deponed that the last time the plaintiff’s advocate fixed this matter for hearing on 24th April 2002 and duly served a hearing notice upon the defendants. However a few days to the hearing date, the plaintiff’s advocate noticed and drew the attention of the plaintiff to Gazette Notices Nos.1401 and 1402 of 1st March 2002 regarding the intended compulsory acquisition of the same suit property by the Government on behalf of Kenya Broadcasting Corporation. The Plaintiff, through its Managing Director, promptly wrote to the Commissioner of Lands, drawing his attention to the pending proceedings in respect of the suit property and the intention to object to the said proposed acquisition. So when the case came up for hearing on 24th April 2002 it was ordered that it be stood over to the 26th June 2002 for the parties to re-examine their respective positions in the light of the intervening Legal Notices by the government.
Thereafter negotiations were launched to have this matter settled amicably out of court, with M/s Khatib & Co. Advocates inviting the plaintiff’s proposals on settlement vide his letter dated 23. 5.02 marked PBJ.3(a). However when the case came up for mention on 26th June 2002, the anticipated settlement had not been reached and the case was then stood over generally.
I have taken into account the above averments and submissions. I hold that the plaintiff has satisfactorily demonstrated that it has been interested in prosecuting this case and would have done so were it not been for the various stated intervening facts.
I accordingly dismiss the application dated the 6th June 2003 with costs to the plaintiff.
It is so ordered.
Date, signed and delivered at Mombasa this 27th August
2003.
A.G.A. ETYANG
JUDGE