Jeovan Kunyanga v Gatumba Muchere [2017] KEHC 7596 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

CHUKA ELC CASE NO 78 OF 2017

FORMERLY MERU ELC CASE NO.27 OF 2013

JEOVAN KUNYANGA……………………………………..PLAINTIFF

VERSUS

GATUMBA MUCHERE…………………………………….DEFENDANT

RULING

1. Parties were to come to court on 22. 2.2017 to show cause why this suit should not be dismissed for want of prosecution in terms of order 17 rule 2 (1) of the Civil Procedure Rules.

2. On 22. 2.2017, the plaintiff was represented in court by Mr. Kijaru, who held brief for Advocate Gatare Ringera, for the plaintiff.

3. The defendant and / or his advocate were absent.

4 Mr. Kijaru told the court that on 10. 6.2015, the plaintiff invited the defendant to appear at the Meru Registry to fix a hearing date on 18. 6.2016. As the defendant did not appear, the plaintiff, exparte, fixed 12. 10. 2015 as the hearing date. He told the court that on 12. 10. 2015, the matter could not be heard as the court was clogged up. He asked the court to give the plaintiff another chance to prosecute the case expeditiously.

5. I do note that the plaintiff has misled the court by telling it that on 12. 10. 2015, this matter was not given directions or heard because the court was clogged up.  There is nothing further from the truth. The court record is pellucid that on 12. 10. 2015, the parties did not turn up in court.

6. Order 17 rule 2 (1) decrees that in any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.

7. The defendant has not come to court and, therefore, has not shown to the satisfaction of this court that this suit should NOT be dismissed.

8. The plaintiff has not given any reason why no action had been taken in this matter for a period exceeding one year.

9. In the circumstances, the parties have NOTshown to the satisfaction of this court why this suit should not be dismissed.

10. This suit is dismissed.

11. It is so ordered.

Delivered in open court at Chuka on the 27th day of February, 2017 in the presence of:

CA: Ndegwa

Kijaru h/b Gatare Ringera for the plaintiff

Defendant or advocate absent

P.M. NJOROGE

JUDGE