[2016] KEHC 5842 (KLR)
The court found that the main judicial review motion had not been served upon the respondent, which contributed to the delay in prosecuting the suit. The ex-parte applicant could not obtain directions from the court in the absence of responses from one of the parties. The court held that the applicant had...
Source-derived case information.
- Citation
- [2016] KEHC 5842 (KLR)
- Parties
- Applicant: Zachary Muthamia M'Mwitari; Respondent: Eastern Province Provincial Land Appeals Tribunal; Interested Party: Fabian Mbae M'Ibari
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 15 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal declined; suit not dismissed
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Judicial Review, Delay in Prosecution, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zachary Muthamia M'Mwitari
Applicant
Eastern Province Provincial Land Appeals Tribunal
Respondent
Fabian Mbae M'Ibari
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether the delay in prosecuting the suit was excusable or justified.
- 3 Whether the application for dismissal was properly before the court given issues of representation.
Ratio Decidendi
The court found that the main judicial review motion had not been served upon the respondent, which contributed to the delay in prosecuting the suit. The ex-parte applicant could not obtain directions from the court in the absence of responses from one of the parties. The court held that the applicant had satisfactorily explained the delay and thus met the threshold to avoid dismissal for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules. Consequently, the application for dismissal was declined and the suit was not dismissed.
Court Disposition
application for dismissal declined; suit not dismissed
Orders
- The suit is not dismissed for want of prosecution.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISCELLANEOUS CIVIL APPLICATION NO 15 OF 2011
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDER OF CERTIORARI AGAINST THE EASTERN PROVINCE PROVINCIAL LAND APPEALS TRIBUNAL
AND
IN THE MATTER OF SECTION 8 AND 9 OF THE LAW REFORM ACT (CAP 26) LAWS OF KENYA
AND
IN THE MATTER OF THE REGISTERED LAND ACT (CAP 300)
AND
IN THE MATTER OF EASTERN PROVINCE PROVINCIAL LAND APPEALS TRIBUNAL
APPEAL NO. 61 OF 2010 AND READ IN MERU CHIEF MAISTRATE'S COURT AS LDT N0. 6 OF 2010
AND IN THE MATTER OF LAND PARCEL NO. IGOJI/MWERU11/1008
BETWEEN
ZACHARY MUTHAMIA M'MWITARI..........................................................................APPLICANT
VERSUS
EASTERN PROVINCE PROVINCIAL LAND APPEALS TRIBUNAL …...........RESPONDENT
FABIAN MBAE M'IBARI...............................................................................INTERESTED PARTY
R U L I N G
This application is dated 10th December, 2014 and seeks orders:
THAT this Honourable Court be pleased to dismiss the Applicant/Respondent suit for want of prosecution.
THATcosts of this application and those of the main suit be borne by the Applicant/Respondent herein.
The application is supported by the affidavit of Fabian Mbae M' Ibari and has the following grounds:-
THATthe suit was last in Court on 20th February, 2012.
THATit is now over one (1) year since this was last in Court and no steps have since been taken by the Applicant/Respondent to carry on with the same.
THATthe Applicant/Respondent has lost interest in the prosecution of this suit.
THATit is evident that this has suffered want of prosecution and deserves to be dismissed
The application was canvassed by way of Written Submissions.
The Interest Party has submitted that that the ex-parte applicant failed to take any step in this matter for over one year and urges the Court to dismiss the suit in terms of order 17 Rule 2 of the Civil Procedure Rules. He submits that the indolence of the ex-parte applicant is against Written Law. He argues that the delay has been inordinate and inexcusable, in addition to being prejudicial to him.
The Exparte Applicant submits he is the registered owner of the Suit land. He says that the delay in the prosecution of the case was mainly because the Respondent had not filed his Replying Affidavit. He, interalia, says that the law firm of M/S Otieno Co. & Associates, Advocates , who represent the Interested Party, did not file or serve any Notice of Appointment and opines that, for this reason, the application is incompetent and improperly in Court for having been filed by an Advocate who is not on record.
On 03/03/2016, the Respondent told the Court that he dismissed of the suit and did not intend to file any responses or submissions.
I have carefully examined the submissions proffered by the parties. I have also perused the proffered authorities. I do note that on 13/5/2015, the Interested Party admitted that the main J R motion had not been served upon the Respondent. I find that this partly caused delay in this suit as the ex-parte applicant could not obtain directions from the Court in the absence of the responses of one of the applicants.
For a suit to be dismissed in terms of Order 17, CPR, the parties must fail to satisfy the Court that the suit should not be dismissed. I find that the exparted- applicant has satisfied the Court that this suit should not be dismissed. Therefore, this suit is not dismissed.
Costs shall be in the cause.
It is so ordered.
Delivered in Open Court at Meru this 23rd day of March, 2016 in the presence of:-
P. M. NJOROGE
JUDGE