[2014] KEHC 4460 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for nearly five years after filing, and did not oppose the defendants' application for dismissal. Citing established authority, the court held that it is the plaintiff's responsibility to move the case forward and that public...
Source-derived case information.
- Citation
- [2014] KEHC 4460 (KLR)
- Parties
- Plaintiff: Christine Nazi Nyale; Defendant: Housing Finance Company of Kenya Ltd; Defendant: Julius Alama Mwambere
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 246 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to both defendants
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Nazi Nyale
Plaintiff
Housing Finance Company of Kenya Ltd
Defendant
Julius Alama Mwambere
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 due to inordinate delay by the plaintiff.
- 2 Whether the defendants are entitled to costs of the suit and the application.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for nearly five years after filing, and did not oppose the defendants' application for dismissal. Citing established authority, the court held that it is the plaintiff's responsibility to move the case forward and that public policy demands expeditious conduct of litigation. The unexplained and inordinate delay was deemed inexcusable, warranting dismissal of the suit for want of prosecution. The court further held that the defendants were entitled to costs of both the suit and the application.
Court Disposition
suit dismissed for want of prosecution with costs to both defendants
Orders
- Plaintiff’s suit is dismissed with costs to both defendants for want of prosecution.
- Both defendants are awarded costs of the Notice of Motion dated 27th July, 2011.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 246 OF 2006
CHRISTINE NAZI NYALE ……………………………..…….... PLAINTIFF
V E R S U S
1. HOUSING FINANCE COMPANY OF KENYA LTD
2. JULIUS ALAMA MWAMBERE ……………….......… DEFENDANTS
RULING
Plaintiff filed this suit on 2nd November, 2006. The Defendants filed a Memorandum of Appearance and Defence on 28th November 2006 and 4th December 2006 respectively. From that date no action was taken by any part until the Defendants filed their Notice of Motion of 27th July 2011.
By that Notice of Motion Defendants seek the dismissal of Plaintiff’s suit for want of prosecution. The application was not opposed perhaps as sign that Plaintiff does acknowledge that the suit should indeed be dismissed for want of prosecution. I will remind the Plaintiff her duty once she filed a case by referring to the decision FITZPATRICK –Vs- BATGER & CO. LTD (1967)2 ALL ER 657 Lord Denning, citing his decision in REGGENTINE –Vs- BEECHOLME BAKERIES LTD [1967]111 Sol. Jo. 216, said as follows-
“It is the duty of the Plaintiff’s advisers to get on with the case. Public policy demands that the business of the Courts should be conducted with expedition … the delay is far beyond anything we can excuse. This action has gone to sleep for nearly two years. It should now be dismissed for want of prosecution.”
For the above reasons I make the following orders-
Plaintiff’s suit is hereby dismissed with costs to both Defendants for want of prosecution.
Both Defendants are awarded costs of the Notice of Motion dated 27th July, 2011.
DATED and DELIVERED at MOMBASA this 19TH day of JUNE, 2014.
MARY KASANGO
JUDGE