[2023] KEHC 22579 (KLR)
The court found that the plaintiffs had failed to take any steps to prosecute the suit since April 29, 2020, despite being served with the application for dismissal and having ample opportunity to respond. The absence of any opposition to the application and the prolonged inactivity justified dismissal for want of...
Source-derived case information.
- Citation
- [2023] KEHC 22579 (KLR)
- Parties
- Plaintiff: Al Hyder Trading Company Limited; Plaintiff: Rana Shaukat Ali Waryam; Defendant: Diamond Trust Bank Kenya Limited; Defendant: Joseph Gikonyo t/a Garam Investment
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Commercial Case 46 of 2018
- Procedural Posture
- Commercial Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution. Each party to bear their own costs.
- Judges
- RE Aburili
- Legal Topics
- Dismissal for Want of Prosecution, Statutory Power of Sale, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Al Hyder Trading Company Limited
Plaintiff
Rana Shaukat Ali Waryam
Plaintiff
Diamond Trust Bank Kenya Limited
Defendant
Joseph Gikonyo t/a Garam Investment
Defendant
Procedural Posture
Commercial Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether costs should be awarded to any party upon dismissal.
Ratio Decidendi
The court found that the plaintiffs had failed to take any steps to prosecute the suit since April 29, 2020, despite being served with the application for dismissal and having ample opportunity to respond. The absence of any opposition to the application and the prolonged inactivity justified dismissal for want of prosecution. The court further held that each party should bear their own costs, as the 1st defendant retained the statutory power of sale regardless of the outcome of the suit.
Court Disposition
Suit dismissed for want of prosecution. Each party to bear their own costs.
Orders
- The suit against the defendants is dismissed for want of prosecution.
- Each party shall bear their own costs of the suit.
Full Case Text
Judgment text and source record
26 paragraphs
Al Hyder Trading Company Limited & another v Diamond Trust Bank Kenya Limited & another (Commercial Case 46 of 2018) [2023] KEHC 22579 (KLR) (19 September 2023) (Ruling)
Neutral citation: [2023] KEHC 22579 (KLR)
Republic of Kenya
In the High Court at Kisumu
Commercial Case 46 of 2018
RE Aburili, J
September 19, 2023
Between
Al Hyder Trading Company Limited
1st Plaintiff
Rana Shaukat Ali Waryam
2nd Plaintiff
and
Diamond Trust Bank Kenya Limited
1st Defendant
Joseph Gikonyo t/a Garam Investment
2nd Defendant
(FORMERLY ELC NO. 280 OF 2015)
Ruling
1. The application dated May 18, 2022 is for dismissal of this suit for want of prosecution with costs.
2. The Plaintiff was served but no Replying affidavit or submissions have been filed to oppose the application.
3. For the above reasons, as the suit has been pending since May 22, 2018 and since the Ruling of April 29, 2020 the Plaintiff has never taken steps to prosecute the suit.
4. The suit herein against the defendant is hereby dismissed for want of prosecution with an order that each party bear their own costs of the suit as the 1st Defendant will still exercise its statutory power of sale in this matter.
5. This file is closed.
6. The Ruling to be typed and supplied to the parties.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 19TH DAY OF SEPTEMBER, 2023R. E. ABURILIJUDGE