[2006] KEHC 1872 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit since 29th March 2004, and did not oppose or attend the hearing of the application for dismissal. This inactivity contravened Order 16 Rule 5 (c) of the Civil Procedure Rules, which empowers the court to dismiss a suit for want of...
Source-derived case information.
- Citation
- [2006] KEHC 1872 (KLR)
- Parties
- Plaintiff: Citylink Telecom Limited; Defendant: Kenya Commercial Bank Limited; Defendant: Kenya College of Telecommunications
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 719 of 1997
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Suit dismissed as against the 1st defendant for want of prosecution with costs to the 1st defendant.
- Judges
- MM Kasango
- 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
Citylink Telecom Limited
Plaintiff
Kenya Commercial Bank Limited
Defendant
Kenya College of Telecommunications
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 16 Rule 5 (c).
- 2 Whether the 1st defendant is 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 since 29th March 2004, and did not oppose or attend the hearing of the application for dismissal. This inactivity contravened Order 16 Rule 5 (c) of the Civil Procedure Rules, which empowers the court to dismiss a suit for want of prosecution if the plaintiff does not refix the suit for hearing within three months after its removal from the hearing list. The court held that the 1st defendant's application was merited and that the suit should be dismissed as against the 1st defendant, with costs awarded to the 1st defendant for both the suit and the application.
Court Disposition
Suit dismissed as against the 1st defendant for want of prosecution with costs to the 1st defendant.
Orders
- The suit is dismissed as against the 1st defendant for want of prosecution with costs of the suit awarded to the 1st defendant.
- The 1st defendant is granted costs of the Notice of Motion dated 17th March 2006.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 719 of 1997
CITYLINK TELECOM LIMITED………………….............................................…………...PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LIMITED……….........................................…….1ST DEFENDANT
KENYA COLLEGE OF TECOMMUNICATIONS…….........................................2ND DEFENDANT
RULING
This suit was filed in July 1997. The 1st defendant filed its defence on 24th July 2001.
This suit was lastly fixed for hearing on the 29th March 2004 when it was removed from the hearing list.
The plaintiff has failed to fix the case for hearing since 29th march 2004 and despite being served with the application to dismiss the suit for want of prosecution, filed by the 1st defendant the plaintiff did not oppose nor did it attend the hearing of that application. That in activity obviously offends order 16 Rule 5 (c) which provides that if after suit is removed from the hearing list the plaintiff fails to refix it for hearing within three months the defendant may apply for dismissal of the suit for want of prosecution. The defendant has done just that and in the court’s view the application is merited.
The court accordingly grants the following orders:
(1) That this suit is dismissed as against the 1st defendant for want of prosecution with costs of the suit being awarded to the 1st defendant
(2) The 1st defendant is granted costs of the Notice of Motion dated 17th March 2006.
MARY KASANGO
JUDGE
Dated and delivered this 10th July 2006
MARY KASANGO
JUDGE