MRS. WAYUA MUTAMBUKI vs MOSES MUTAMBUKI MUTIA & MUSYOKA MULI [2004] KEHC 447 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL CASE NO. 54 OF 1992

MRS. WAYUA MUTAMBUKI :::::::::::::::::::: PLAINTIFF

VERSUS

MOSES MUTAMBUKI MUTIA

MUSYOKA MULI ) :::::::::::::: DEFENDANT

R U L I N G

The Plaintiff/Applicant filed this suit on 13. 3.1992. She was acting in person. An appearance was filed by Dauti Kibanga Advocate on 27. 3.1992. Thereafter nothing was done in the suit until 10. 7.1997 when the court on its own motion brought it up, issued notice to show cause on the parties as to why it could not be dismissed and the court dismissed the suit under Order 16 Rule 2 when parties failed to attend. Thereafter on 20. 6.2002 the plaintiff/applicant filed an application to have the court review its order of 10. 7.1997 and set the said orders aside. The said application was later amended on 10. 7.2003. It seeks further that the plaintiff’s suit be revived, based on ground that she was aggrieved by the dismissal order 10. 7.1997 and that the dispute is over land which she has been in occupation all her life and that the title is held by defendant as a trustee, and that the dismissal order condemned her unheard, and that it is in the interests of justice that the order of 10. 9.2002 be dismissed, reviewed or set aside.

Musyoka Muli the 2nd defendant filed a replying affidavit in opposing the application in which he depones that he is the registered owner of the land and he is in actual occupation, that the court file has never disappeared and the litigation should come to an end.

From the time this case was filed to the time of dismissal was just over 5 years. The plaintiff had never done anything apart from filing the plaint and leaving it at that.

I have perused the court file and I do find that indeed there was no service of the notice to show cause which was heard on 10. 7.1997 upon the plaintiff. The other parties were however served and nobody attended and the court went ahead and ordered the dismissal of the suit. After the dismissal order it seems the plaintiff woke up out of her deep sleep on 20. 6.2002 when the application for review was filed. This was 10 years after the filing of the plaint and 5 years after the order of dismissal. Even if the plaintiff was not served with the notice under Order 16 Rule 2, does it mean that she stayed away for 10 years after filing her case and only came to realise that it had been dismissed after the 10 years. That seems to be the case. There has been unexplained inordinate delay which just shows that the plaintiff/applicant was not keen on prosecuting the case at all. It was a land matter and she should have been keen to have it presented especially if it is the only land she has. There is no evidence that this file ever went missing otherwise letters would have been written to the Deputy Registrar or Executive Officer. How come the court could bring it up and it was found when this application was made. An application for review should be made within a reasonable time and I do find that 5 years after the dismissal order is inordinate delay. Litigation has to come to an end and this one has come to an end and there is no good reason for the court to bring it back to life.

Application is without merit and it is dismissed with costs to Respondent.

Dated, read and delivered at Machakos this 22nd day of April,

2004.

R. V. WENDOH

JUDGE