[2007] KEHC 651 (KLR)
The court found that the Plaintiff had failed to take any step to prosecute the suit for nearly five years after it was stood over generally at the Plaintiff's instance. No explanation was offered for this delay, and the Plaintiff did not oppose the application or appear at the hearing. The court held that the delay...
Source-derived case information.
- Citation
- [2007] KEHC 651 (KLR)
- Parties
- Plaintiff: Basil Criticos (Alias Vassilis Criticos); Defendant: Agricultural Finance Corporation; Defendant: Shariff Alwi Ahmed
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1497 of 1996
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order 16 Rule 5, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Basil Criticos (Alias Vassilis Criticos)
Plaintiff
Agricultural Finance Corporation
Defendant
Shariff Alwi Ahmed
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution under Order 16, rule 5(d) of the Civil Procedure Rules.
- 2 Whether the delay in prosecuting the suit is inordinate and inexcusable.
Ratio Decidendi
The court found that the Plaintiff had failed to take any step to prosecute the suit for nearly five years after it was stood over generally at the Plaintiff's instance. No explanation was offered for this delay, and the Plaintiff did not oppose the application or appear at the hearing. The court held that the delay was inordinate and inexcusable, indicating that the Plaintiff had lost interest in the suit. Accordingly, the court exercised its discretion under Order 16, rule 5(d) of the Civil Procedure Rules to dismiss the suit for want of prosecution, with costs to the Defendants.
Court Disposition
suit dismissed for want of prosecution
Orders
- The plaintiff's suit is dismissed under Order 16, rule 5(d) of the Civil Procedure Rules.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI COMMERCIAL COURTS COMMERCIAL AND TAX DIVISION
CIVIL CASE 1497 OF 1996
BASIL CRITICOS(Alias VASSILIS CRITICOS)…………….PLAINTIFF
V E R S U S
1. AGRICULTURAL FINANCE CORPORATION
2. SHARIFF ALWI AHMED ……………......…………….DEFENDANTS
R U L I N G
There has been considerable delay in the preparation and delivery of this ruling. The same was occasioned by my serious illness in 2006 and the long attendant recuperation. The delay is regretted.
This is an application by the 1st Defendant for an order to dismiss the Plaintiff’s suit against it for want of prosecution. It is by notice of motion dated 24th August, 2005 brought under Order 16, rule 5(d) of the Civil Procedure Rules (the Rules). Under that rule, if, within three months of the adjournment of the suit generally, the plaintiff, or the court of its own motion on notice to the parties, does not set down the suit for hearing, the defendant may do so or apply for its dismissal. There is a supporting affidavit from the Defendants’ advocate, WINFRED WANJAMA.
It is said that since 7th November, 2000 the Plaintiff has never taken any step towards prosecution of the case. On that date, the matter had come up for directions; it was stood over generally at the instance of the Plaintiff’s counsel.
The Plaintiff was duly served with the application. He did not file any grounds of opposition or relying affidavit; nor was there any appearance for him at the hearing of the application. The application is therefore unopposed.
I have considered the submissions of the learned counsel for the 1st Defendant. I have also perused the record of the court. The present application was filed on 25th August, 2005. Before then the suit had come up on 7th November, 2000 for directions on how hearing should proceed; it was stood over generally. Since then the Plaintiff has not set the suit down for hearing. There has been a delay of nearly five (5) years. This is inordinate. No explanation has been offered for the delay, which is therefore inexcusable.
It is apparent that the Plaintiff has lost interest in this suit. It is hereby dismissed under Order 16, rule 5(d) of the Civil Procedure Rules, with costs to the Defendants. There will be orders accordingly.
DATED AT NAIROBI THIS 10TH DAY OF SEPTEMBER, 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 14TH DAY OF SEPTEMBER, 2007