[2012] KEHC 4315 (KLR)
The court found that the plaintiff had engaged in delay tactics and had not demonstrated any interest in prosecuting the suit since September 2009. The court was satisfied that the requirements of Order 17 of the Civil Procedure Rules had been met, justifying dismissal for want of prosecution. The court further...
Source-derived case information.
- Citation
- [2012] KEHC 4315 (KLR)
- Parties
- Plaintiff: Borop Multipurpose Co-operative Society Ltd; Defendant: Doune Farm Ltd & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1561 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- Application to dismiss suit for want of prosecution allowed. Suit dismissed. Stay of 30 days granted. Leave to appeal granted.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Status Quo Orders, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Borop Multipurpose Co-operative Society Ltd
Plaintiff
Doune Farm Ltd & Others
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss 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 status quo orders previously granted should be discharged.
- 3 Whether the plaintiff is entitled to a stay of execution and leave to appeal.
Ratio Decidendi
The court found that the plaintiff had engaged in delay tactics and had not demonstrated any interest in prosecuting the suit since September 2009. The court was satisfied that the requirements of Order 17 of the Civil Procedure Rules had been met, justifying dismissal for want of prosecution. The court further considered the plaintiff's request for a stay and leave to appeal, and, in the interests of justice and to avoid disturbance of the status quo, granted a 30-day stay and leave to appeal. The operative reasoning was that prolonged inaction by the plaintiff, despite opportunities to proceed, warranted dismissal to prevent abuse of court process and prejudice to the defendants, but a...
Court Disposition
Application to dismiss suit for want of prosecution allowed. Suit dismissed. Stay of 30 days granted. Leave to appeal granted.
Orders
- The suit is dismissed for want of prosecution with costs to the defendants.
- A stay of execution is granted for 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
40 paragraphs
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 1561 OF 2002
BOROP MULTIPURPOSE CO-OPERATIVE
SOCIETY LTD………………………………………………..PLAINTIFF
VERSUS
DOUNE FARM LTD & OTHERS………....……………..DEFENDANT
RULING
Notice of Motion brought under Order 17 rule 2(i) (ii) and 3 of Civil Procedure Rules seeks order to dismiss this suit for want of prosecution and that orders granted on 22/7/2003 be discharged on the grounds that this suit has not been heard since 2002 when it was filed.
There have been many applications and on 22/7/2003 adjournment was requested so that main suit may be fixed for hearing. Other numerous applications have been partly executed.
It is now over one year since any step was taken in the matter. The plaintiff is enjoying an order for status quo. The application is supported by affidavit of Richard Kay Muir Director of first defendant. That the first defendant is the registered owner of LR 9045/9 subject of suit. The suit was filed in 2002.
That since September 2009 no step has been taken by the plaintiff. On 13/10/2010 and 28/2/2011 invitation to fix dates were sent but plaintiff advocate did not appear at registry for purposes of fixing hearing dates.
It is in the interest of justice that this suit be dismissed.
I have perused the documents of title and other supporting annextures of the application. I have also considered the arguements advanced by the plaintiff and I am of the view that the plaintiff has engaged in the tactics of causing delay in prosecution of this suit. It has not indicated any interest to proceed with the prosecution of the suit.
In the circumstances I find that the provisions of order 17 Criminal Procedure Code is complied with.
Therefore I allow this application and grant orders as prayed with costs in the suit and application to the defendants.
J.N. KHAMINWA
JUDGE
William Kipkorir Alusei for the plaintiff wishes to address the court
Mr. Bitok with Mr. William Kipkorir
We ask for stay for a period of 30 days pending a formal application for stay.
This is a land matter that the situation on grounds does allow us to delay. I also pray for leave to appeal. Also certified copies of Ruling and proceedings we undertake to pay copying charges.
For Defendants
We have no objection for leave to appeal. On issue of stay there is no use. It is their suit.
The issue of costs does not arise we have not filed for costs yet.
Mr. Ogola
I object to stay being granted.
Court
The plaintiff’s wish to appeal against the order made. In view of what they say I think it is just to keep the situation for the time being undisturbed.
I grant stay for a period of 30 days from today.
I also order Ruling to be typed and supplied together with proceedings. Leave to appeal is hereby granted.
Dated and delivered at Nairobi this 17th day of May, 2012.
J.N. KHAMINWA
JUDGE