[2015] KEHC 3958 (KLR)
The court found that no step had been taken in the suit since 17th November 2009, a period exceeding five years. Applying Order 17 Rule 3 of the Civil Procedure Rules, which allows for dismissal where no step has been taken for over a year, the court determined that the plaintiffs had failed to prosecute their case...
Source-derived case information.
- Citation
- [2015] KEHC 3958 (KLR)
- Parties
- Plaintiff: Bernard Mpiuki Gatumo; Plaintiff: Lawrence Kamundi Gichunge; Defendant: Catherine M. Kamundi; Defendant: Dominic Kirimi Gichunge
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 94 of 2008
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Mpiuki Gatumo
Plaintiff
Lawrence Kamundi Gichunge
Plaintiff
Catherine M. Kamundi
Defendant
Dominic Kirimi Gichunge
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 inaction by the plaintiffs for over five years.
- 2 Whether the defendants are entitled to costs upon dismissal of the suit.
Ratio Decidendi
The court found that no step had been taken in the suit since 17th November 2009, a period exceeding five years. Applying Order 17 Rule 3 of the Civil Procedure Rules, which allows for dismissal where no step has been taken for over a year, the court determined that the plaintiffs had failed to prosecute their case and had been indolent. The court further considered the overriding objective of expeditious disposal of cases and concluded that the delay was unjustified and prejudicial to the defendants. Consequently, the court exercised its discretion to dismiss the suit for want of prosecution and awarded costs to the defendants.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- Costs are awarded to the defendants.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL CASE NO. 94 OF 2008
BERNARD MPIUKI GATUMO.............................................................1ST PLAINTIFF
LAWRENCE KAMUNDI GICHUNGE...................................................2ND PLAINTIFF
VERSUS
CATHERINE M. KAMUNDI.................................................................1ST DEFENDANT
DOMINIC KIRIMI GICHUNGE.............................................................2ND DEFENDANT
R U L IN G
This application by the defendants is dated 26th January, 2015 and seeks orders:
THAT this Honourable court be pleased to dismiss this suit for want of prosecution.
THAT the costs of this application be provided for.
It is supported by the affidavit of the 1st Defendant and also by the following grounds:
THAT the Plaintiffs or their Advocates have not taken any step towards the prosecution of this suit for close to five years now.
THAT the Plaintiffs have failed to expedite the prosecution of this suit.
THAT the plaintiffs have lost interest in their claim and are not desirous to have the matter determined on its merits.
THAT in furtherance of the overriding objective all claims be disposed off expeditiously as dismissal would not be unwarranted or draconian in the circumstances of this suit as the plaintiffs have been blatantly indolent.
THAT the delay in vindication of the defendants is a clear case of justice delayed is justice ultimately denied.
THAT this Honourable Court has the power to grant the orders prayed for.
The application was heard on 13. 4.2015 when Mr. Murithi for the defendants told the court that the suit was field in 2008 and had never been brought before a judge. He prayed that the suit be dismissed for want of prosecution.
Order 17 Rule 3 provides that any party to a suit may apply for dismissal of a suit if no application has been made or step taken by either party for one year.
In this matter, no step has been taken since 17. 11. 2009, over 5 years ago. I, therefore, find that this suit warrants to be dismissed for want of prosecution. In the circumstances, I dismiss the suit. Costs are awarded to the defendants.
It is so ordered.
Dated and delivered in Open Court at Meru this 13th day of April, 2015 in the presence of:
Cc. Daniel
Mutunga h/b Murithi for defendant
P. M. NJOROGE
JUDGE