[2018] KEHC 10204 (KLR)
The court found that the plaintiffs had failed to take any action in the matter since 26th November 2014, and that there was no opposition to the application for dismissal. The delay was characterized as prolonged, inordinate, and inexcusable, creating a substantial risk that a fair trial would not be achieved. The...
Source-derived case information.
- Citation
- [2018] KEHC 10204 (KLR)
- Parties
- Plaintiff: Anne Njoki Masikonte Osono; Plaintiff: Masikonte Ole Osono; Defendant: K-Rep Bank (K) Limited; Defendant: Garam Investments
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 167 of 2013
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Injunctions, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Njoki Masikonte Osono
Plaintiff
Masikonte Ole Osono
Plaintiff
K-Rep Bank (K) Limited
Defendant
Garam Investments
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 prolonged and inexcusable delay by the plaintiffs.
- 2 Whether the defendants are entitled to costs of the suit and the application.
Ratio Decidendi
The court found that the plaintiffs had failed to take any action in the matter since 26th November 2014, and that there was no opposition to the application for dismissal. The delay was characterized as prolonged, inordinate, and inexcusable, creating a substantial risk that a fair trial would not be achieved. The court concluded that the requirements of Order 17 Rule 1 (3) of the Civil Procedure Rules had been met, and that the suit should be dismissed for want of prosecution. Costs were awarded to the defendants for both the suit and the application.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- Costs of the suit are awarded to both defendants.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL CASE NO. 167 OF 2013
ANNE NJOKI MASIKONTE OSONO..........1ST PLAINTIFF/RESPONDENT
MASIKONTE OLE OSONO.........................2ND PLAINTIFF/RESPONDENT
-VERSUS-
K-REP BANK (K) LIMITED..........................1ST DEFENDANT/APPLICANT
GARAM INVESTMENTS..............................2ND DEFENDANT/APPLICANT
RULING
1. The plaintiff filed this action on 30th April 2013 seeking an injunction to restrain the defendants from selling by public auction or private treaty or in any other way interferring with title no. CISMARA/NAIBOR AJIJIK/560.
2. The plaintiff also filed a notice of motion dated 30th April 2013 and obtained on 7th May 2013 an injunction pending inter partes hearing.
3. The said application was adjourned from time to time and was lastly in court on 26th November 2014 when it was adjourned generally at the instance of the plaintiff. The injunction was on that day vacated.
4. The plaintiff failed to take any action in this matter thereafter. The defendants have filed a notice of motion dated 22nd October 2014 brought under Order 17 Rule 1 (3) of the Civil Procedure Rules seeking dismissal of this suit for want of prosecution.
5. Order 17 Rule 1 (3) provides that any party may apply for dismissal of a suit when no action has been taken for one year. In this case, action was last taken by the plaintiff on 26th November 2014. The plaintiff did not file any papers in opposition to the application even though his advocate was served with the same. There was no attendance in court on behalf of the plaintiff when the application came up before court for hearing.
6. There is no doubt in my mind that there has been lack of due dilligence in ensuring prosecution of this case on the part of the plaintiff in this case. The delay on the plaintiff’s part in prosecution of this case is prolonged, inordinate and inexcusable. Such a delay, can involve substantial risk that fair trial of the issues in the matter would not be achieved.
7. Accordingly, I order that this suit be and is hereby dismissed for want of prosecution and the costs of the suit are awarded to both the defendants. The defendants are also awarded costs of the notice of motion dated 22nd October 2014.
DATED, SIGNED and DELIVERED at NAIROBI this 30th day of October, 2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant....................Sophie
........................................... for the Plaintiffs
........................................... for the Defendants
MARY KASANGO
JUDGE