1. Basically, the Notice of Motion by the Defendant/ Applicant dated 1
st April
2025, seeks the main order that this suit be dismissed for want of
prosecution. On the basis of the grounds set out in the motion supported by
the averments contained in the supporting affidavit/ deposed on 13
th
November 2024 by counsel for the Applicant, Ms. Rachel Moraa.
The Respondent/ Plaintiff filed a replying affidavit dated 24
th September
2025, in opposition to the application.
2. Order 17 Rules [1][3], Order 2 Rule [15] of the Civil Procedure Rules and
Section 3A of the Civil Procedure Act provided the foundation for the
application Order 17 Rule 3 Civil Procedure Rule is of significant
importance and provides that: -
“Where on any day to which the hearing of the suit is
adjourned, the parties or an of them fail to appear, the court
may proceed to dispose of the suit in order of the modes
directed in that behalf by Order 12, or make, such other
order as it thinks fit.”
And, Rule 3[1] of order 12 provides that: -
“If one that day fixed for hearing, after the suit has been
called for hearing outside the court, only the defendant
attends and he admits nor part of the claim, the suit shall be
dismissed except for good cause to be recorded by the
court.”
3. It is the Applicant’s contention that this suit was filed on 17
th August 2016
and close to nine [9] years since that the file has never moved to prosecution
it despite several notification to her.
Further to the foregoing and as an alternative, the Applicant contends that
the Plaintiff’s suit discloses no reasonable cause of action against the
Defendant.
In her rejoinder, the Plaintiff/ Respondent contends that she is willing and
energetic enough to proceed and prosecute her case to the end. She
attribute the delay in the prosecution of her case to the failure by her ..........
Advocate to provide her with accurate and correct communication on the
status of her case whose subject matter is property she considers to be
matrimonial properly part of which is occupied by a third party.
4. The record shows that this case was filed in court on 17
th August 2016 for
orders “interalia” to compel the Defendant/Applicant to allow the
Plaintiff/Respondent access her matrimonial home standing on the parcel of
land described as Nandi/Kipsigak/158. The Defendant/Applicant is said to
be husband or spouse to the Plaintiff, but denied the allegation in his
statement of defence and contended that he is married to one wife called
Emmy Letting with whom they own the aforementioned parcel of land on
which stands that matrimonial home.
Whether or not there exists a marriage relationship between the Applicant
and the Defendant is a matter raising valid triable issues which may only be
resolved by a complete and full hearing of this case which in the
circumstance, cannot be said to be frivolous, vexatious and an abuse of the
court process to warrant its summary dismissal.
5. Evidently, since the closure of the pleadings and the determination of an
interlocutory application the Plaintiff/ Respondent has been rather slow in
prosecution her case to its logical conclusion. She blames her previous
advocate for the delay but fails to demonstrate how the advocate is to
blame. Nonetheless, failure by an advocate not to expeditiously in
prosecuting a matter could offer prosecution of this matter.
6. Consequently and while giving the Plaintiff/ Respondent the benefit of doubt
for the delay in the prosecution of this case it would be in the interest of
justice that the present application be disallowed and the Plaintiff be given at
opportunity to be heard in order that her case against the Defendant/
Applicant be determined on the merits.
The application is accordingly dismissed with each party bearing their own
costs and on condition that the Plaintiff do ensure that her case is
prosecuted and concluded within the next for [4] months from this date
hereof. In default, the case, shall stand dismissed for want of prosecution,
with costs to the Defendant.
Ordered accordingly.
Dated and Delivered this 5
th day of March 2026
J. R. KARANJAH,
JUDGE
st April
2025, seeks the main order that this suit be dismissed for want of
prosecution. On the basis of the grounds set out in the motion supported by
the averments contained in the supporting affidavit/ deposed on 13
th
November 2024 by counsel for the Applicant, Ms. Rachel Moraa.
The Respondent/ Plaintiff filed a replying affidavit dated 24
th September
2025, in opposition to the application.
2. Order 17 Rules [1][3], Order 2 Rule [15] of the Civil Procedure Rules and
Section 3A of the Civil Procedure Act provided the foundation for the
application Order 17 Rule 3 Civil Procedure Rule is of significant
importance and provides that: -
“Where on any day to which the hearing of the suit is
adjourned, the parties or an of them fail to appear, the court
may proceed to dispose of the suit in order of the modes
directed in that behalf by Order 12, or make, such other
order as it thinks fit.”
And, Rule 3[1] of order 12 provides that: -
“If one that day fixed for hearing, after the suit has been
called for hearing outside the court, only the defendant
attends and he admits nor part of the claim, the suit shall be
dismissed except for good cause to be recorded by the
court.”
3. It is the Applicant’s contention that this suit was filed on 17
th August 2016
and close to nine [9] years since that the file has never moved to prosecution
it despite several notification to her.
Further to the foregoing and as an alternative, the Applicant contends that
the Plaintiff’s suit discloses no reasonable cause of action against the
Defendant.
In her rejoinder, the Plaintiff/ Respondent contends that she is willing and
energetic enough to proceed and prosecute her case to the end. She
attribute the delay in the prosecution of her case to the failure by her ..........
Advocate to provide her with accurate and correct communication on the
status of her case whose subject matter is property she considers to be
matrimonial properly part of which is occupied by a third party.
4. The record shows that this case was filed in court on 17
th August 2016 for
orders “interalia” to compel the Defendant/Applicant to allow the
Plaintiff/Respondent access her matrimonial home standing on the parcel of
land described as Nandi/Kipsigak/158. The Defendant/Applicant is said to
be husband or spouse to the Plaintiff, but denied the allegation in his
statement of defence and contended that he is married to one wife called
Emmy Letting with whom they own the aforementioned parcel of land on
which stands that matrimonial home.
Whether or not there exists a marriage relationship between the Applicant
and the Defendant is a matter raising valid triable issues which may only be
resolved by a complete and full hearing of this case which in the
circumstance, cannot be said to be frivolous, vexatious and an abuse of the
court process to warrant its summary dismissal.
5. Evidently, since the closure of the pleadings and the determination of an
interlocutory application the Plaintiff/ Respondent has been rather slow in
prosecution her case to its logical conclusion. She blames her previous
advocate for the delay but fails to demonstrate how the advocate is to
blame. Nonetheless, failure by an advocate not to expeditiously in
prosecuting a matter could offer prosecution of this matter.
6. Consequently and while giving the Plaintiff/ Respondent the benefit of doubt
for the delay in the prosecution of this case it would be in the interest of
justice that the present application be disallowed and the Plaintiff be given at
opportunity to be heard in order that her case against the Defendant/
Applicant be determined on the merits.
The application is accordingly dismissed with each party bearing their own
costs and on condition that the Plaintiff do ensure that her case is
prosecuted and concluded within the next for [4] months from this date
hereof. In default, the case, shall stand dismissed for want of prosecution,
with costs to the Defendant.
Ordered accordingly.
Dated and Delivered this 5
th day of March 2026
J. R. KARANJAH,
JUDGE