MATHEW CHERUIYOT & JULIANA CHERUIYOT v ANNAH BWOKENY, RECHO SIOROR & ANNAH SIOROR [2009] KEHC 766 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

Civil Suit 80 of 2001

1. Civil practice and procedure

2. Application dated 16th September, 2009

a.         To dismiss suit for lack of prosecution

b.         Order XVI 59(d) cpr

c.         Subject of main suit

Land claim

Upon Kericho/Kapkatet/1439 (portion) 1. 3 acres)

d.         Case last adjournment 15th June, 2009

e.         No action taken

3. Respondent:-

i)        Failed to pay Kshs. 2,000/= costs as ordered by G.B.M. KARIUKI j ON 9. 10. 08.

ii)       Failed to file replying affidavit of grounds of opposition.

4. Held

a)        Application granted

b)       Suit dismissed for lack of prosecution

5. Case Law - Nil

6. Advocates

N.O. Migiro advocate instructed by M/S Migiro & Co. advocates for the Defendants/Applicants - present

J.R. Kimeto advocate instructed by M/S Bett & Co. Advocates for the Plaintiffs/Respondents - present

MATHEW CHERUIYOT ………………………….1ST PLAINTIFF

JULIANA CHERUIYOT ………………………… 2ND PLAINTIFF

VERSUS

ANNAH BWOKENY ……………………….. 1ST DEFENDANT

RECHO SIOROR ……………………………2ND DEFENDANT

ANNAH SIOROR ……………………………3RD DEFENDANT

RULING

Application to dismiss  the Originating Summons for

Lack of Prosecution

order XVI r 5(d) CPR

I: Procedure

1.   Order XVI r 5(d) provides that “If within three months after-

a)   …

b)   Deleted by LN 36/00

c)    …

d)   the adjournment of the suit generally, the plaintiffs or the court of its own motion or notice to the parties does not set down the suit for hearing, the defendant may either set the suit down for hearing or apply for its dismissal”

II: Background

2.   The originating summons was filed on             15th October, 2001 suing by the estate of the late Cheruiyot Arap Tele through Mathew Cheruiyot and Juliana Cheruiyot referred to the Plaintiff/respondents herein against the estate of Kimilgo Bwokeny and two others the defendant/applicant.

3.   Unfortunately, Annah Bwokeny passed away and was substituted by the current two respondents/applicants.

4.   She was able to enter appearance and file a reply in which she claimed that, land parcel Kericho/Kapkatet/1439 belonged to her and was never parcel of land Kericho/Kapkatet/ 995 belonging to the plaintiffs/respondents.

5.   That 1. 3 acres of portion of the land was never the plaintiffs/respondents.

6.   There was an African court case on this matter being No. 30 of 1956.  Decided prior to adjudication and a registration of the portion of land.  The registration occurred on 28th April, 1969.

7.   The plaintiff’s case was not heard. It was adjourned and on 9th October, 2008 when it came for hearing before G.B.M Kariuki J it was adjourned with orders that Kshs. 2,000/= costs be paid to the defendants.  This was never done.

III: Application 15th June, 2009

8.   The defendants/applicants filed this present application to have the suit dismissed for lack of prosecution as no action had been taken on this matter.

9.   No replying affidavit or grounds of opposition had been filed.  The sum of Kshs. 2,000/= had never been paid since that last adjournment.

10.   This application not being opposed is granted. The originating summons is hereby dismissed for lack of prosecution under Order XVI r 5(d) cpr with costs to the defendants/applicants.

DATED this 23rd day of October, 2009 at KERICHO

M.A. ANG’AWA

JUDGE

Advocates

N.O. Migiro advocate instructed by M/S Migiro & Co. advocates for the Defendants/Applicants

J.R. Kimeto advocate instructed by M/S Bett & Co. Advocates for the Plaintiffs/Respondents - present