PAUL MWANGI NJOROGE vs GETRUDE OWINY ONYANGO [2004] KEHC 2512 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL SUIT NO. 153 OF 2001(OS)

PAUL MWANGI NJOROGE ……………………………………………………… PLAINTIFF

VERSUS

GETRUDE OWINY ONYANGO ……………………………………………… DEFENDANT

RULING

This is an application for orders to dismiss the plaintiff’s suit for want of prosecution, on the basis of the grounds inter alia, that since 1. 10. 2002 when the matter was last listed for hearing of the plaintiff’s application and ruling delivered on 22. 05. 2002, the plaintiff has not taken any steps to set the suit down for hearing. The applicant has moved the court under Order XVI rule 5(c) of the of the Civil Procedure Rules which stipulates that:If, within three months after-

(a) the close of pleadings; or

(c) the removal of the suit from the hearing list; or

(d) the adjournment of the suit generally, the plaintiff, or the court of its own motion on 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.”

The application is opposed by the plaintiff whose contention it is, that the same is frivolous, vexatious and an abuse of the due process. It is also his ground that this suit was stayed by the court pending the hearing and determination of H.C.C.C.(Eldoret) 164 of 1992.

I have perused the pleadings filed herein and I note the suit revolves 29 acres of land being a portion of land known as MTAMBO/1/KITALE/TRANS NZOIA (herein after called “the subject land”). I have also taken into account the ruling of Hon.Justice Etyang, delivered on 2/3/2003 in which he noted that there existed a dispute between this defendant, who is also the applicant herein, and a third party over the subject land leading to a suit against the two, to wit H.C.C.C. (Eldoret) 164 of 1992 and to which this plaintiff/respondent sought to be en-joined. The learned Judge ordered that this particular suit be stayed pending the determination of the aforementioned suit. I find that with that ruling on the records it would not have been be logical in the circumstances, for this plaintiff to have taken any further steps in this suit. His hands are tied by the orders of stay and he cannot thus be faulted on that account. I do therefore find that the application by the defendant who is well aware of the current position is not only vexatious, but that it is an abuse of the process and I do dismiss it with costs. Dated and delivered at Eldoret this 11th day of March, 2004

JEANN GACHECHE

JUDGE

In presence of: