JOSHUA KAMAU GATERU, SIMON WANYIRI KANGERI, ALOSIO WAWERU KAMAU, WACHIRA WA MUGO & another v DIOCESE OF NYERI TRUSTEES, ARCH BISHOP NICODEMUS KIRIMA & NYERI CATHOLIC SECRETARY [2004] KEHC 294 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI CIVIL CASE 9 OF 1996

1.    JOSHUA KAMAU GATERU    )

2.    SIMON WANYIRI KANGERI)

3.    ALOSIO WAWERU KAMAU )

4.    WACHIRA WA MUGO  )

5.    FRANCIS GACHAGO MUGO) ………………………………….. PLAINTIFFS

VERSUS

1.    DIOCESE OF NYERI TRUSTEES      )

2.    ARCH BISHOP NICODEMUS KIRIMA)

3.    NYERI CATHOLIC SECRETARY      ) ………………………… DEFENDANTS

R U L I N G

The Defendants/Applicants seeks to have the Plaintiffs/ Respondent’s suit filed herein dismissed for want of prosecution.  It is the Applicants’ contention that the Plaintiffs/Respondents has taken no steps since September 2001 to prosecute their claim.

By a replying affidavit sworn on 23rd September 2004, the Plaintiffs’ advocate Mr. James Rika contends that the Defendants’ application is incompetent and without merit as the Plaintiffs’ suit was struck out by Osiemo J on 20. 11. 1996 and therefore there is no suit pending to be struck out.

Upon considering the court record, it is apparent that the Plaintiffs’ advocate is misrepresenting facts.  The court record shows clearly that what came before Osiemo J on 20th November 1996 was an application dated 4th November 1996 filed on 4th November 1996 wherein the Plaintiffs’ sought to be allowed to bring a representative suit.  The application was rejected as no notice had been served on those persons whom the Plaintiffs wanted to represent.  This did not mean that the Plaintiffs’ suit had been struck out as claimed by the Plaintiffs’ advocate.  The suit still remained with the Plaintiffs’ suing in their own capacity.

Indeed the Plaintiffs/Respondents did bring another application under order 1 rule 8 of the Civil Procedure Rules and on 6th September 2001 they were allowed to proceed with their suit as a representative suit.  Since then no action has been taken to prosecute the suit.

I find that the Plaintiffs have not been diligent in pursuing their claim against the Defendants.  In the circumstances, it is only fair and just that the Defendants/Applicants’ application to have the Plaintiffs suit dismissed for want of prosecution be granted.

I therefore allow the application dated 15th May 2003 and issue orders as prayed.

Costs to the Applicants.

Dated signed and delivered this 17th day of November 2004

H. M. OKWENGU

JUDGE