Republic v Chairman, Land Disputes Tribunal, Gatundu North & another Ex-Parte James Mwangi Muchiri [2013] KEHC 6496 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIAMANI LAW COURTS

JUDICIAL REVIEW  DIVISION

MISC. APPL. NO. 70 OF 2005

BETWEEN

REPUBLIC ...................................................................APPLICANT

AND

THE CHAIRMAN, LAND DISPUTES TRIBUNAL,

GATUNDU NORTH.................................................RESPONDENT

GEORGE MUGO GITAU..........................INTERESTED PARTY

EX-PARTE

JAMES MWANGI MUCHIRI

RULING

The Notice of Motion dated 21st February 2013 seeks to set aside the order of dismissal for want of prosecution made on 7th February 2012.  Whether or not to reinstate the suit is a matter for the court’s discretion to be exercised based on specific facts brought before the court.

I have considered the application and the affidavit sworn by James Muchiri sworn on 21st February 2012 and he does not explain why the suit has remained unprosecuted for a period of seven years.  The statement made by counsel that the court file was not to be found is a bare statement without foundation.  The argument that the petitioner had no knowledge of the dismissal proceedings is also not set out in the deposition.

It is clear that there is no factual basis upon which I can exercise my discretion.  Justice looks both ways and even where a person has a cause of action, justice demands that the case is prosecuted diligently and without delay so that the other party is not prejudiced.

I am unable to disturb the dismissal order.  The Notice of Motion dated 21st February 2013 is dismissed with costs.

DELIVERED and DATED at NAIROBI this 7th August 2013

D.S. MAJANJA

JUDGE

Mr Njoroge instructed by Muturi Njoroge and Company Advocates for the ex-parte applicant

Mr Wandai instructed by Karuga Wandai and Company Advocates for the interested party.