[2009] KEHC 2680 (KLR)
The court found that although there had been a significant delay in prosecuting the suit, the application for dismissal dated 8th January, 2004 was withdrawn by the applicant's counsel on 3rd May, 2004. As a result, there was no application before the court for determination. The court declined to move suo motu...
Source-derived case information.
- Citation
- [2009] KEHC 2680 (KLR)
- Parties
- Plaintiff: David Kamau Ndirangu; Defendant: Gateway Insurance
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 466 of 1999
- Procedural Posture
- Civil Case / Ruling on Motion to Dismiss for Want of Prosecution
- Outcome
- No order made; application withdrawn; no determination on merits.
- Judges
- SP Ouko
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Application Withdrawal
- 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
David Kamau Ndirangu
Plaintiff
Gateway Insurance
Defendant
Procedural Posture
Civil Case / Ruling on Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 16 Rule 5 of the Civil Procedure Rules.
- 2 Whether there is any application before the court for determination.
Ratio Decidendi
The court found that although there had been a significant delay in prosecuting the suit, the application for dismissal dated 8th January, 2004 was withdrawn by the applicant's counsel on 3rd May, 2004. As a result, there was no application before the court for determination. The court declined to move suo motu under Order 16 Rule 6, noting that the respondent had filed an application on 17th November, 2005, which was not heard due to the absence of a judge. Consequently, the court took no further action in the matter.
Court Disposition
No order made; application withdrawn; no determination on merits.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 466 of 1999
DAVID KAMAU NDIRANGU…………………………………….PLAINTIFF
VERSUS
GATEWAY INSURANCE……………………..………………DEFENDANT
RULING
This is a Motion dated 8th January, 2004 for dismissal of this suit for want or prosecution brought pursuant to Order 16 Rule 5 of the Civil Procedure Rules. The application does not provide under which of the sub-rules ((a) (c) or (d)) it is brought.
But the applicant, thought its counsel has deposed that the respondent has not set down the suit for hearing since 12th February, 1997. The respondent brought this suit against the applicant claiming the value of some motor vehicle parts allegedly stolen from the respondent’s motor vehicle which was insured by the applicant. That suit was filed some thirteen (13) years ago on 18th September, 1996.
With leave of the court, the respondent filed an amended plaint on 12th February, 1997. On 10th February, 2004 after nearly seven (7) years from the date the amended plaint was filed, the applicant brought the present application.
H.C.C.C.NO.466/96
I have perused the record and it is abundantly clear to me that although the respondent has not prosecuted its claim against the applicant, the application dated 8th January, 2004 was withdrawn by counsel for the applicant on 3rd May, 2004. There is therefore no application before me for determination. I would have moved under Order 16 Rule 6 but for the fact that the respondent filed an application on 17th November, 2005 which was not heard as there was no judge at the station when it was stated for hearing on 25th January, 2006, I say no more in the matter since there is no application before me.
DATED, SIGNED and DELIVERED at Nakuru this 21st day of July, 2009.
W. OUKO
JUDGE