Mathew Cheruiyot & 1 other v Annah Bwokeny & 2 others

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 aftera) … 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

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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

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