BISMARK NYAKUNDI NYANYUKI v DALKUDI RUTO CHEPSAT AND MAGDALENE CHEPKORIR RUTO [2007] KEHC 2414 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

Civil Suit 73 of 2005

BISMARK NYAKUNDI NYANYUKI:……............................……PLAINTIFF

VERSUS

DALKUDI RUTO CHEPSAT:………….................……..1ST DEFENDANT

MAGDALENE CHEPKORIR RUTO:…....................…..2ND DEFENDANT

R U L I N G

The applicant MAGDALINE CHEPKORIR RUTO who is the second defendant in the suit has brought this application under order 16 rule 5(d) CPR seeking the court to dismiss the suit for want of prosecution and costs of the suit.

She deponed that since the suit was filed on 9th August 2005 it had not been fixed for hearing.  By the time the application was filed 10 months had passed.

In reply the plaintiff stated that the applicant who is the 2nd defendant is a wife of the 1st defendant.  The first defendant died and the applicant has been reluctant to take letters of Administration to facilitate substitution.  Both defendants were register as co-owners of land in dispute.

Indeed the Respondent had not taken any steps to prosecute the case within  the stipulated time.  However the explanation by the plaintiff is pliable.  The 1st defendant is said to have died soon after the suit was filed.  The applicant by his wife is the person who should take letters  of Administration but she is reluctant to do so.  The Respondent could not fix the case for hearing before substitution.  Both defendants were registered as co-owners of land in dispute.

Indeed the Respondent had not taken any steps to prosecute the case within the stipulated time.  However the explanation by the plaintiff is plumable.  The 1st defendant is said to have died soon after the suit was filed.  The applicant being his wife is the person who should take Letters of Administration but she is reluctant to do so.  The Respondent could not fix  the case for hearing before substitution.  He should take the necessary steps to substitute as to do so he does not need  Letters of  Administration.  I will use my discretion and grant him a chance to put his house in order.

In the circumstances the application is dismissed.  Respondent will however pay costs of the application arrived at Shs.3500/= to the applicant.

It is so ordered.

Dated and Delivered at Eldoret on 3rd July,2007

KABURU BAUNI

JUDGE

Delivered in the Presence of:-

C/C  -  David

Mr. Mwetich for Odede for Applicant

Mr. Buluma for Ombati for Respondent.