[2009] KEHC 3819 (KLR)
The court found that the plaintiff had failed to provide a satisfactory explanation for the prolonged delay in prosecuting the suit. Allegations of personal threats were deemed unsubstantiated and insufficient to justify non-compliance with procedural requirements. The court emphasized the necessity for parties to...
Source-derived case information.
- Citation
- [2009] KEHC 3819 (KLR)
- Parties
- Plaintiff: Bernard Kituva Nganga; Defendant: Kenya Commercial Bank Ltd.; Defendant: Mutuku Malonza; Defendant: Ezekiel Mwaka Musau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 123 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application allowed. Suit dismissed for want of prosecution. Costs awarded to the defendants.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Kituva Nganga
Plaintiff
Kenya Commercial Bank Ltd.
Defendant
Mutuku Malonza
Defendant
Ezekiel Mwaka Musau
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 inordinate delay by the plaintiff.
- 2 Whether the plaintiff's explanation for delay constitutes sufficient cause to avoid dismissal.
Ratio Decidendi
The court found that the plaintiff had failed to provide a satisfactory explanation for the prolonged delay in prosecuting the suit. Allegations of personal threats were deemed unsubstantiated and insufficient to justify non-compliance with procedural requirements. The court emphasized the necessity for parties to adhere to the Civil Procedure Act and Rules, and held that if the plaintiff was unable to proceed, he should have withdrawn the suit rather than allow it to stagnate. Consequently, the court exercised its discretion to dismiss the suit for want of prosecution and awarded costs to the defendants.
Court Disposition
Application allowed. Suit dismissed for want of prosecution. Costs awarded to the defendants.
Orders
- The suit is dismissed for want of prosecution.
- The respondent (plaintiff) shall pay the costs of this application.
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 123 OF 2006
BERNARD KITUVA NGANGA ……....…….PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LTD. ......…………... 1ST DEFENDANT
MUTUKU MALONZA …………………..……………. 2ND DEFENDANT
EZEKIEL MWAKA MUSAU ……...…………………. 3RD DEFENDANT
R U L I N G
Application of notice of motion dated 15/12/08 seeking orders that this suit be dismissed for want of prosecution on the ground that the plaintiff has failed to set down the suit for hearing since his injunction application was stood over generally on 9/5/2006.
This application is supported by affidavit of Mr. Kiragu Kimani who has filed a very detailed explanation of the very inordinate delay in prosecuting this suit.
In replying affidavit, the plaintiff has tried to justify his delay. He brings in the dispute of personal nature – threats on his life and those of his family. And that he has reported these threats to police and internal security ministry about this matter and so forth.
I have perused the plaintiff’s explanations and I find no good reason to give him more time, these allegations have no merit. If he is not able to proceed with the prosecution of the case he could withdraw the suit. He must comply with the rules of procedure as set out in the Civil Procedure Act and Rules thereunder as to the conduct of suits.
I therefore allow the application and grant orders sought. The respondent shall pay the costs of this application.
Orders accordingly.
DATED and DELIVERED at Nairobi this 4th day of May 2009.
JOYCE N. KHAMINWA
JUDGE