[2006] KEHC 2490 (KLR)
The court held that although the plaintiff had delayed in setting the suit down for hearing for seven months, the delay was not so inordinate as to warrant dismissal of the suit. The existence of a pending application for consolidation was not a sufficient excuse for the delay, and the objection to the supporting...
Source-derived case information.
- Citation
- [2006] KEHC 2490 (KLR)
- Parties
- Plaintiff: Alcon Holdings Ltd.; Defendant: Delphis Bank Limited; Defendant: Felicity Nyaga t/a Palamino Agencies
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case 629 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed with conditions.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Judicial Discretion, Consolidation of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alcon Holdings Ltd.
Plaintiff
Delphis Bank Limited
Defendant
Felicity Nyaga t/a Palamino Agencies
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiff's delay in setting the suit down for hearing.
- 2 Whether the existence of a pending application for consolidation of suits is a sufficient reason to excuse the delay.
- 3 Whether the supporting affidavit to the application is defective due to the deponent's status.
Ratio Decidendi
The court held that although the plaintiff had delayed in setting the suit down for hearing for seven months, the delay was not so inordinate as to warrant dismissal of the suit. The existence of a pending application for consolidation was not a sufficient excuse for the delay, and the objection to the supporting affidavit was without merit since the deponent's bank was the successor to the 1st defendant. The court exercised its discretion not to dismiss the suit but ordered the plaintiff to set the suit down for hearing within 14 days, failing which the suit would stand dismissed. Costs were awarded to the applicant.
Court Disposition
Application for dismissal for want of prosecution dismissed with conditions.
Orders
- The plaintiff shall set the suit down for hearing within 14 days from the date of the ruling, failing which the suit will stand dismissed.
- The applicant is awarded the costs of the application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 629 of 2002
ALCON HOLDINGS LTD. ……………………...........................…………..PLAINTIFF
VERSUS
DELPHIS BANK LIMITED ………………..............…...........….….1ST DEFENDANT
FELICITY NYAGA T/A PALAMINO AGENCIES …….............….2ND DEFENDANT
RULING
By its application of the 26. 5.2005 the Applicant seeks to have the suit herein dismissed for want of prosecution.
The reasons given are that the Plaintiff has failed to take any steps for a period of seven months to prosecute the suit and the subject matter of the suit has been disposed of.
Grounds of opposition have been filed by the Plaintiff/Respondent. It states there is a pending application to consolidate this suit with another and alleged that the affidavit in support of the application by Ravi Patnain is defective as he is an officer of the Oriental Commercial Bank Ltd, which is not a party to the suit. There is also a replying affidavit sworn by the Managing Director of the Plaintiff Company.
The application is brought pursuant to the provisions of Order 16 Rule 5(a), which requires the Plaintiff to set the suit down for hearing within three months after the close of pleadings.
The Applicant is at liberty to make this application as no steps in this suit had been taken for a period of seven months prior to the making of this application. The remedy is, however, discretionary. A court will generally only dismiss a suit if the delay in taking steps to set the suit down for hearing has been so inordinate that the Plaintiff is deemed to have abandoned the suit or the Plaintiff has by its conduct demonstrated that it has no interest in proceeding with the matter.
So far as the objection are concerned the fact that an application has been made subsequent to this application for consolidation of suits is not a sufficient answer to the Plaintiff’s failure to set the suit down for hearing. Also the complaint in respect of the supporting affidavit is not merited as the deponent states that his bank is the successor to the 1st Defendant bank.
However, I am not persuaded that the failure to set the suit down for hearing is so inordinate as to make a dismissal order or that the Plaintiff has evinced an intention to abandon the suit.
I order that the Plaintiff do set this suit down for hearing within 14 days from today failing which the suit will stand dismissed.
The applicant will have the costs.
Dated and delivered at Nairobi this 25th day of May, 2006.
P. J. RANSLEY
JUDGE