[2014] KEHC 4148 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit since presenting her second witness in 2007, and that the only subsequent action was by the applicant's advocates in taking a hearing date in 2010. Since then, the respondent had remained inactive. The court concluded that the...
Source-derived case information.
- Citation
- [2014] KEHC 4148 (KLR)
- Parties
- Plaintiff: Charity Vanessa Gathoni Kamau; Defendant: Mark Pyman; Defendant: Kezia Pyman; Defendant: George Timothy Pyman
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 62 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the second defendant/applicant
- Judges
- EO Obaga
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order 17 Rule 2, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charity Vanessa Gathoni Kamau
Plaintiff
Mark Pyman
Defendant
Kezia Pyman
Defendant
George Timothy Pyman
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 under Order 17 Rule 2 (3) of the Civil Procedure Rules.
- 2 Whether the plaintiff has taken any steps to prosecute the suit since the last court appearance.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit since presenting her second witness in 2007, and that the only subsequent action was by the applicant's advocates in taking a hearing date in 2010. Since then, the respondent had remained inactive. The court concluded that the respondent had lost interest in the case and that the requirements for dismissal under Order 17 Rule 2 (3) of the Civil Procedure Rules were satisfied. The application for dismissal was therefore well grounded and allowed, resulting in the dismissal of the suit with costs to the applicant.
Court Disposition
suit dismissed for want of prosecution with costs to the second defendant/applicant
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the second defendant/applicant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL SUIT NO. 62 OF 2003
CHARITY VANESSA GATHONI KAMAU............................PLAINTIFF
VERSUS
MARK PYMAN
KEZIA PYMAN
GEORGE TIMOTHY PYMAN.........................................DEFENDANTS
R U L I N G
1. The second applicant filed a notice of motion dated 6th June, 2011 in which he seeks orders that the suit filed against him be dismissed for want of prosecution. The application is supported by his affidavit sworn on 19th May, 2011.
2. The applicant contends that this suit was last in court on 20/4/2010 and that since then, the plaintiff/Respondent has not taken any step to have the same prosecuted. The application by the applicant was duly served upon the respondent's advocates who neither filed any grounds of opposition or replying affidavit nor appeared in court during the hearing of the application.
3. Order 17 Rule 2 (3) of the Civil Procedure Rules provides that any party to the suit may apply for its dismissal in which no application has been made or step taken by either party for one year. In the present case the respondent presented her second witness in court on 17/10/2007. Since then she never made any further step towards concluding the suit. The applicant's advocates took a date for hearing of the suit on 20/4/2010. The respondent was absent but the applicant was present. The hearing was stood over generally. Since then, the respondent has not taken any step towards prosecution of her case.
4. It is clear that the respondent has lost interest in her case. I find that the applicant's application is well grounded. The same is hereby allowed with the result that the suit herein is dismissed with costs to the second defendant/Applicant.
It is so ordered.
Dated, signed and delivered at Kitale on this 8th day of July, 2014.
E. OBAGA
JUDGE
COURT: Ruling delivered at 9. 28 a.m. in the absence of the applicant's advocate who was aware of today's date. Court Clerk – Kassachoon.
E. OBAGA
JUDGE
8/7/2014