[2012] KEHC 478 (KLR)
The court found that the Plaintiffs had not taken any steps to prosecute the suit since 15th October, 2004, demonstrating total apathy and loss of interest in the matter. The Plaintiffs failed to provide a satisfactory explanation for the delay. The court exercised its discretion under Order XVI Rule 5(d) of the...
Source-derived case information.
- Citation
- [2012] KEHC 478 (KLR)
- Parties
- Plaintiff: Caleb Kositany suing for and on behalf of Simon Sawe Kositany (deceased); Plaintiff: Messrs Kabobo Company Limited; Defendant: Industrial & Commercial Development Corporation; Defendant: Peter Birds Investments
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 473 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendants
- Judges
- CM Njagi, GV Odunga
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caleb Kositany suing for and on behalf of Simon Sawe Kositany (deceased)
Plaintiff
Messrs Kabobo Company Limited
Plaintiff
Industrial & Commercial Development Corporation
Defendant
Peter Birds Investments
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the plaintiffs demonstrated sufficient interest in prosecuting the suit.
- 3 Whether costs should be awarded to the defendants.
Ratio Decidendi
The court found that the Plaintiffs had not taken any steps to prosecute the suit since 15th October, 2004, demonstrating total apathy and loss of interest in the matter. The Plaintiffs failed to provide a satisfactory explanation for the delay. The court exercised its discretion under Order XVI Rule 5(d) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act to dismiss the suit for want of prosecution. The Plaintiffs were also ordered to pay the costs of the application, as the delay had prejudiced the Defendants and wasted judicial resources.
Court Disposition
suit dismissed for want of prosecution with costs to the defendants
Orders
- The suit is dismissed for want of prosecution.
- The Plaintiffs shall pay the costs of the suit and the application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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CALEB KOSITANY
SUING FOR AN ON BEHALF OF SIMON SAWE KOSITANY –DECEASED…….…...1ST PLAINTIFF
MESSRS KABOBO COMPANY LIMITED……......................................……………..2ND PLAINTIFF
VERSUS
INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORATION…………........1STDEFENDANT
PETER BIRDS INVESTMENTS…………….......................................……………..2ND DEFENDANT
RULING
This application seeks the dismissal of this suit for want f prosecution. It is brought by way of a Notice of Motion dated 12th May, 2009, and taken out under Order XV1 Rule 5(d) of the Civil Procedure Act, and Section 3A of the Civil Procedure Act.
When the matter came for hearing on 11th November, 2010 Mr. Odongo appeared for the 1st Defendant/Applicant and Ms. Kitonga held brief for Mr. Gatuguta for the Plaintiff/Respondent. Ms. Kitonga told the court that Mr. Gatuguta was before another court in Divorce Cause No. 98/201, and that he had not been invited to take the hearing date. Mr. Odongo responded by saying that the Plaintiffs had not demonstrated any interest in the matter.
This suit was instituted in 2004. It last came to court on 15th October, 2004. Since then the Respondents have never set it down for hearing, this court takes the view that the Plaintiffs have amply demonstrated total apathy towards the prosecution of this case and have lost the interest to do so.
For the above reasons, this suit is hereby dismissed with costs for want of prosecution. The Plaintiffs will also pay the costs of this application.
L. NJAGI
JUDGE
DATEDand DELIVEREDat NAIROBI this 5th day of November, 2012
ODUNGA
JUDGE