Gedion M'ikunyua & Janet Nkirote Ikunyua v Japhet Kithinji Muguna [2016] KEHC 902 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

ELC NO. 156 OF 2012

GEDION M'IKUNYUA(SUING AS LEGAL  REPRESENTIVE OF THE ESTATE

OF JOYCE GATWIRI M'IKUNYUA).............................................1ST PLAINTIFF

JANET NKIROTE IKUNYUA........................................................2ND PLAINTIFF

VERSUS

JAPHET KITHINJI MUGUNA...........................................................DEFENDANT

RULING

1. This application is dated 1st December, 2013. It is predicated upon Order 17 Rule 2, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. It seeks Orders;

1. That this suit be dismissed for want of prosecution.

2. That the costs of this application as well as the costs  of the suit be awarded to the defendant/applicant.

2. The application is supported by the affidavit of Japhet Kithinji Muguna and has the following grounds;

1. That the Plaintiffs are culpable of inordinate and inexcusable delay in prosecuting the matter herein.

2. That since inception/filing of the case herein in the year  2012, neither the plaintiff nor the court of its own motion has ever taken any broad steps to set the suit down for  hearing.

3. That it is now over 3 years since the matter was filed and  or registered in court, which period is far beyond the one year period required by law for the suit to be dismissed for  want of prosecution.

4. It is apparent that the plaintiff has lost interest in prosecuting this suit and the same ought to be dismissed   for want of prosecution in the interest of justice.

5. It is cardinal principle of Law that litigation must come to an end and the continued pendancy of the suit in court without being prosecuted not only prejudices the Defendant   but it is also an abuse of the court process.

3. The Supporting  Affidavit of Japhet Kithinji Muguna sworn on 1st December, 2015  states as follows;

I, Joseph Kithinji Muguna of P O box 1846 Meru within the Republic of  Kenya do hereby make oath and state as follows;

1. That I am an adult person of sound mind and the defendant/applicant herein hence competent to make and swear this affidavit.

2. That I am well seized with facts herein deponed.

3. That on 16th December, 2005 I celebrated a marriage  with one Joyce Gatwiri G Muriungi now deceased at  Katheri Methodist Church under the African Christian Marriage and Divorce Act Act Cap 151 Laws of Kenya (annexed and marked “JKM1” is a copy of the marriage  Certificate).

4. That on 29th October, 2014 I was issued with letters of administration in respect to the deceased estate vide Meru High Court Succession Cause No. 206 of 2012.

5. That prior to the said marriage the deceased and I cohabited  as husband and wife in our matrimonial  home situated at Katheri for all intents and purposes.

6. That the deceased left the following properties.

(a) Land Parcel No. 4805 ATHINGA/ATHANYA  ADJUDICATION SECTION.

(b) Land Parcel no. 3797 KINJAI ADJUDICATION  SECTION.

7. That during our marriage we jointly developed both  parcels of land.

8. That we put up rental house in parcel No. 4805 Athinga/Ithanya adjudication Section which we have  leased to several tenants.

9. That before the deceased died we used to collect rent from the  rooms constructed in plot no. 4805, but after my wife's death her sister one Salome started collecting rent and would not   remit the same to me.

10. That on 4th April, 2012 the plaintiffs through the firm  of M/S Elijah K. Ogoti & CO Advocates filed   Tigania  PMCC No 51 of 2012 against me, seeking injunctive orders  in respect to land parcel no. 4805 Athinga/Athanja and  3797 Kianjai Adjudication section herein referred (annexed herewith find a copy of the plaint dated 3rd April, 2012 and marked  “JKM2”.

11. That Tigania PMCC No. 51 of 2012, was transferred to Meru High Court and registered as Meru High Court E &  L Civil case no. 156 of 2012.

12. That it is now over three (3) years since the time this suit  was registered in Meru High Court and the plaintiff had   not taken any steps in prosecuting  the same.

13. That it is apparent that the plaintiffs' have lost interest  in this matter.

14. That it is cardinal principle of law that litigation   must   come to an end in the interest of justice to both parties.

15. That the pendancy of this suit in court without being  prosecuted is an abuse of the court process and I urge this  court to exercise it's discretion to curtail further abuse by  dismissing the suit with costs to me.

16. That the plaintiffs are capable of in ordinate and in   excusable delay in prosecuting their case.

17. That this honourable court has jurisdiction to grant  the  orders sought in this application.

18. That what is deponed herein is true to the best of my knowledge, information and belief unless otherwise stated.

4. The application came before court on 8th November, 2011 when advocate D J Mbaya, for the defendant/applicant, told the court that the plaintiff's advocate was properly served with the apposite date when the parties were required to be in court for directions. He lamented that this suit was filed way back in 2012 and since then the plaintiff's had taken no steps to prosecute their case. He , therefore, sought dismissal of the suit in terms of the provisions of Order 17 of the Civil Procedure Rules.

5. I find that this application has merit.

6. This suit is dismissed.

7. It is so ordered.

DELIVERED IN OPEN COURT AT MERU THIS 23RD DAY OF NOVEMBER, 2016 IN THE PRESENCE OF:-

C.A: James

Mutura h/b D.J Mbaya for the Defendant.

P. M. NJOROGE

JUDGE