Hellen Karemu Muriira v Raphael Muturi Njogu [2017] KEHC 2245 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

E & L CIVIL SUIT NO. 138 OF 2014 (O.S)

HELLEN KAREMU MURIIRA..........................PLAINTIFF

VERSUS

RAPHAEL MUTURI NJOGU.......................DEFENDANT

R U L I N G

1. The Notice of Motion dated 21st February, 2017  is filed by the defendant and it seeks the following orders:-

1) This suit be dismissed for want of prosecution.

2) The inhibition orders placed over title No. ABOGETA/NKACHIE/660 on 28TH October, 2014 be lifted.

3) Costs of this application and the main suit be borne by the Plaintiff/Respondent.

2. The  Application is based on the grounds that:-

1) The last time suit was in Court was on 28th October, 2015.

2) The Respondent/Plaintiff has failed to respond to the Defendant/Applicant’s application of 11th August, 2015, nor file written submission over the same on her own application dated 12th August, 2015 despite the directions of this Honourable Court of 22nd September, 2015.

3) The Plaintiff filed this suit way back on 22nd September, 2014 and after getting inhibition orders against the Defendant’s title No. ABOGETA/NKACHIE/660 and failing to get injunctive orders against the Defendant, he has lost interest in this case.

4) The case is ripe for dismissal.

3. Raphael Muturi, the applicant/ Defendant  has also filed a Supporting Affidavit where he has deponed as follows:-

1) That he is the absolute proprietor of land parcel No. ABOGETA/NKACHIE/660.

2) That the Plaintiff brought the suit against him way back on 22nd September, 2014 seeking purported order of adverse possession over his (applicants) land.

3) That Defendant was never served with the summons herein but stumbled on the matter when he did a search over my parcel of land.

4) That Plaintiff also filed and obtained orders of inhibition over the Parcel of land.

5) That this matter was in Court last on 28th October, 2015, when plaintiff’s side was ordered to file their submissions as defendant’s Advocates had filed their respective submissions on 27 September 2015.

6) That to date the plaintiff has not complied with the order of 28th October, 2015 nor taken any other actions in this suit.

7) That it well over (15) months since the last action was taken in this matter.

8) That clearly the Plaintiff has lost interest in this matter.

9) That this matter has therefore suffered want of prosecution and should be dismissed appropriately as it is clogging the Court’s registry for no good reason.

4. In response to the present application, plaintiff has sworn an affidavit where she  has deponed as follows:-

1) That there are two pending interlocutory application in this matter and the one dated 11/08/2015 is filed by the defendant herein.

2) That Applicant has a lot of interest in this matter.

3) That the defendant used orders of this court to evict her from the Suitland and hence, she instructed her advocate to fix a mention so that the Court could direct for the full hearing of this matter.

4) That her Advocate wrote to Court on 28/12/2016 and a copy of the letter thereof was received in Court on 28/12/2016 which is annexed herewith and marked HKM1.

5. On 18. 07. 17, directions were given for the application to be canvassed by way of Written Submissions.

6. I have considered all the arguments raised herein. Indeed the last time matter was in Court was on 28:10:15 (that is prior to filing of the present applications).

7. The orders of 28/10 /2015 are clear. Plaintiff was ordered to file and serve their submissions concerning the two applications within 30 days. Two years down the line, the plaintiff has not given any explanation at all as to why there was no compliance with the courts orders of 28/10/2015. To date, those orders have not been complied with.

8. I am therefore inclined to believe that plaintiff has lost interest in the matter.

9. The application of 23/2/2017 is hereby allowed, this suit is dismissed with costs to defendant. The inhibition orders placed over the suit land is hereby lifted.

10. Costs of the suit to Defendant.

SIGNED, DATED AND DELIVERED IN OPEN COURT AT MERU THIS 5TH OCTOBER, 2017 IN THE PRESENCE OF:

CA: Janet

Mutegi for Defendant

Defendant present

HON. L. N. MBUGUA

ELC JUDGE