[2018] KEELC 1473 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit since August 2016, and had not attended court on subsequent dates. The 2nd defendant, having filed a defence and taken steps, demonstrated that the plaintiff was not interested in prosecuting the matter. The plaintiff did not...
Source-derived case information.
- Citation
- [2018] KEELC 1473 (KLR)
- Parties
- Plaintiff: Bartonjo Kipkech; Defendant: Beatrice Wambui John; Defendant: Consolidated Bank Ltd; Defendant: Legacy Auctioneering Services
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 331 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the 2nd defendant
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bartonjo Kipkech
Plaintiff
Beatrice Wambui John
Defendant
Consolidated Bank Ltd
Defendant
Legacy Auctioneering Services
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules.
- 2 Whether costs should be awarded to the 2nd defendant.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit since August 2016, and had not attended court on subsequent dates. The 2nd defendant, having filed a defence and taken steps, demonstrated that the plaintiff was not interested in prosecuting the matter. The plaintiff did not oppose the application or attend court despite being served. The court was satisfied that the requirements of Order 17 rule 2(1) of the Civil Procedure Rules were met, and that no cause had been shown to prevent dismissal. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution and awarded costs to the 2nd defendant, including costs of the...
Court Disposition
suit dismissed for want of prosecution with costs to the 2nd defendant
Orders
- The suit is dismissed for want of prosecution.
- Costs of the suit are awarded to the 2nd defendant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAKURU
CASE No. 331 OF 2016
BARTONJO KIPKECH..........................................................PLAINTIFF
VERSUS
BEATRICE WAMBUI JOHN......................................1ST DEFENDANT
CONSOLIDATED BANK LTD...................................2ND DEFENDANT
LEGACY AUCTIONEERING SERVICES..............3RD DEFENDANT
RULING
1. By Notice of Motion dated 18th July 2018, the 2nd defendant seeks an Order that this suit be dismissed with costs for want of prosecution. The application is brought under Order 17 rule 2(1) and 3 of the Civil Procedure Rules, among other provisions of law.
2. The application is supported by an affidavit sworn by Kabaya Kakunde Tembo, the service Quality Manager of the 2nd Defendant at its Nakuru Branch. He deposed that since filing the suit, the plaintiff has not taken any step to prosecute it.
3. The plaintiff did not attend court or oppose the application despite being served. In the circumstances, counsel for the 2nd defendant urged the court to allow the application.
4. Order 17 rule 2 of the Civil Procedure Rules provides:
2. (1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
5. A perusal of the record herein reveals that upon being served with the plaint the 2nd defendant filed defence and took several other steps in the matter. The 1st and 3rd defendants have however not filed anything. The record further reveals that counsel for the plaintiff has only attended court once, on 18th August 2016 when the matter came up under certificate of urgency. Since then, the matter has come up on at least two other occasions yet counsel for the plaintiff has not attended court on those dates. There has been no appearance for the plaintiff on all those subsequent court dates.
6. In the circumstances, I am persuaded that this is a fit and proper case in which to grant the orders sought. I therefore dismiss this suit for want of prosecution, with costs to the 2nd defendant. I also award costs of Notice of Motion dated 18th July 2018 to the 2nd defendant.
7. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 28th day of September 2018.
D. O. OHUNGO
JUDGE
In the presence of:
Ms Khalayi for the 2nd defendant/applicant
No appearance for the plaintiff/respondent
No appearance for the 1st and 3rd defendants
Court Assistant: Gichaba