[2014] KEHC 3481 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for over ten years since 30th July 2003. The application to dismiss the suit was properly served and not opposed. The court exercised its discretion under Order 17 Rule 2 of the Civil Procedure Rules to dismiss the suit for want of...
Source-derived case information.
- Citation
- [2014] KEHC 3481 (KLR)
- Parties
- Plaintiff: Commercial Spares Limited; Defendant: Al Nakhil Enterprises Limited; Defendant: Hassan Abudlatiff Mohamed
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 388 of 2002
- Procedural Posture
- Notice of Motion / Ruling on Application to Dismiss Suit for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendants
- Judges
- DO Ogembo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court Discretion, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Commercial Spares Limited
Plaintiff
Al Nakhil Enterprises Limited
Defendant
Hassan Abudlatiff Mohamed
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Dismiss Suit for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction for over ten years.
- 2 Whether the defendants are entitled to costs of the application.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for over ten years since 30th July 2003. The application to dismiss the suit was properly served and not opposed. The court exercised its discretion under Order 17 Rule 2 of the Civil Procedure Rules to dismiss the suit for want of prosecution, holding that the delay was inordinate and unjustified. The court further awarded costs of the application to the defendants.
Court Disposition
suit dismissed for want of prosecution with costs to the defendants
Orders
- The Notice of Motion application dated 29th September 2009 is allowed.
- The suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
HCCC NO. 388 OF 2002
COMMERCIAL SPARES LIMITED ::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
AL NAKHIL ENTERPRISES LIMITED :::::::::::: 1ST DEFENDANT
HASSAN ABUDLATIFF MOHAMED ::::::::::::::::: 2ND DEFENDANT
R U L I N G
The application before the court is a Notice of Motion dated 29th September 2009. The application seeks orders:-
That the suit be dismissed for want of prosecution.
That the costs of this application be provided for.
The application is premised on the grounds set out therein and is supported by affidavit of OSBORNE LIJOODI dated 29th September 2009.
The application is not opposed. It was served upon the Respondents. The Hearing Notice for hearing on 3rd June 2014 was also served upon the Respondents. An affidavit of service was filed in court on 3rd June 2014 to prove the same.
The brief facts of the application are that The current suit was filed on 28th March 2002 in Nairobi as HCCC Number 2962 of 1997 against the Defendants. Together with the suit was an application for injunction which was scheduled for hearing on 20th December 2002 but which hearing did not take off. On 28th July 2003 when the said application was to be heard, it again did not take off. The application was finally listed for hearing on 30th July 2003 but again the same did not take place.
It is alleged that since 30th July 2003 the Plaintiff has not set down the application for hearing and more than ten (10) years have since elapsed without any action on the matter. It is on this basis that this application to dismiss the suit is now made to this court.
I have considered the application. It is not opposed. Again, under Order 17 Rule 2 this court has the discretion to dismiss a suit for want of prosecution. Under sub rule (3), the Defendant has a right to bring this application. I believe the application is merited and should be granted.
In the upshot, the Notice of Motion application dated 29th September 2009 is allowed and the suit herein is herewith dismissed with costs to the Defendants.
Orders accordingly.
DATED, READ AND DELIVERED AT NAIROBI
THIS 25TH DAY OF JULY 2014
E. K. O. OGOLA
JUDGE
PRESENT:
No appearance for Plaintiff
No appearance for the Defendants
Teresia – Court Clerk