[2007] KEHC 654 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the case or have damages assessed since the consent judgment on liability was entered. The plaintiff was served with the application for dismissal but did not respond or appear. In the absence of any action by the plaintiff to move the case...
Source-derived case information.
- Citation
- [2007] KEHC 654 (KLR)
- Parties
- Plaintiff: David Ngure; Defendant: Bernard Kanjau Ngamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 133 of 1990
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- plaintiff's suit dismissed for want of prosecution; costs to defendant; defendant may proceed with counterclaim
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order 16 Rule 5, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Ngure
Plaintiff
Bernard Kanjau Ngamau
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution under Order 16, rule 5(d) of the Civil Procedure Rules.
- 2 Whether the plaintiff took any steps to prosecute the case after consent judgment on liability was entered.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the case or have damages assessed since the consent judgment on liability was entered. The plaintiff was served with the application for dismissal but did not respond or appear. In the absence of any action by the plaintiff to move the case forward, and in accordance with Order 16, rule 5(d) of the Civil Procedure Rules, the court exercised its discretion to dismiss the suit for want of prosecution. The defendant was granted liberty to set down his counterclaim for hearing, and costs were awarded to the defendant.
Court Disposition
plaintiff's suit dismissed for want of prosecution; costs to defendant; defendant may proceed with counterclaim
Orders
- The plaintiff's suit is dismissed with costs under Order 16, rule 5(d) of the Civil Procedure Rules.
- The defendant may set down his counterclaim for hearing.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE 133 OF 1990
DAVID NGURE ……………………………………………PLAINTIFF
V E R SU S
BERNARD KANJAU NGAMAU ……………………..DEFENDANT
R U L I N G
Although consent judgment on liability was entered 20th May, 2002, the Plaintiff has never further prosecuted his case so that damages may be assessed. The Defendant therefore has sought by notice of motion dated 5th February, 2007 an order for dismissal of the Plaintiff’s suit for want of prosecution under Order 16, rule 5 (d) of Civil Procedure Rules (the Rules). Under that rule, if, within three months after the adjournment of the suit generally, the Plaintiff, or the court on its own motion on notice to the parties, does not set down the suit of hearing, the Defendant may either set the suit down for hearing or apply for its dismissal.
The record of the court shows that on 22nd March, 2001 the suit was set down for hearing for the 16th and 17th of October, 2001. It appears that the matter was not listed on either one of those two
days. There is no evidence that the Plaintiff has taken any steps since the 22nd March, 2001 to have his damages assessed. He was duly served with the present application; he neither filed any papers in response nor was there appearance for him at the hearing of the application.
In the circumstances, therefore, the Plaintiff’s suit herein is hereby dismissed with costs under Order 16, rule 5(d) of the Rules. The Defendant may set down his counterclaim for hearing. Costs of the application to the Defendant. Orders accordingly.
DATED AT NAIROBI THIS 26TH DAY OF JUNE 2007
H. P. G. WAWERU
J U D G E
DELIVERED THISON 29TH DAY OF JUNE 2007