[2007] KEHC 2483 (KLR)
The court found that the Plaintiff had failed to take any steps to prosecute the suit since its filing in 2005, including failing to set down the main suit or interlocutory applications for hearing. The Plaintiff did not attend the hearing of the application to dismiss for want of prosecution, nor did he provide any...
Source-derived case information.
- Citation
- [2007] KEHC 2483 (KLR)
- Parties
- Plaintiff: David Peter Ng'ang'a; Defendant: Stanbic Bank Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 531 of 2005
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Mandatory Injunction, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Peter Ng'ang'a
Plaintiff
Stanbic Bank Kenya Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate and inexcusable delay.
- 2 Whether the Plaintiff's failure to set the suit down for hearing prejudices the Defendant.
- 3 Whether the Plaintiff has lost interest in prosecuting the suit.
Ratio Decidendi
The court found that the Plaintiff had failed to take any steps to prosecute the suit since its filing in 2005, including failing to set down the main suit or interlocutory applications for hearing. The Plaintiff did not attend the hearing of the application to dismiss for want of prosecution, nor did he provide any explanation for the delay. The court held that the delay was inordinate and inexcusable, and that the continued pendency of the suit prejudiced the Defendant, especially considering the subject matter was a motor vehicle whose value could be compromised by delay. The court concluded that the Plaintiff had lost interest in the case and that the interests of justice required...
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The suit is dismissed for want of prosecution.
- Costs of the suit and of the application are awarded to the Defendant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 531 of 2005
DAVID PETER NG’ANG’A ……………….…….....…….PLAINTIFF
VERSUS
STANBIC BANK KENYA LIMITED…………………DEFENDANT
RULING
The application is a Notice of Motion dated 16th August 2007 brought under Order XVI Rule 5(a), (c) and (d) of Civil Procedure Rules and Order L Rule 1 of Civil Procedure Rules. It seeks an order dismissing the suit for want of prosecution and for costs.
There are three grounds given on the face of the application as the basis of this application. These are:
(a)That the Plaintiff has failed and/or neglected to set down this suit for hearing.
(b)That the Defendant continues to be prejudiced by virtue of the existing suit.
(c)Justice delayed is justice denied.
There is also an affidavit sworn by GREG KARUNGO, in support of the application.
The application is unopposed. This application was served on the Plaintiff in person together with the hearing notice on 2nd October 2007. The Plaintiff had by then filed a Notice of Intention to Act in Person dated 25th September 2007. He did not come for the hearing of the application and so the application was unopposed and heard exparte. The Applicant’s Advocate has deponed that the suit was filed on 26th September, 2005 and that it has never been set down for hearing. The defence was filed on 17th October, 2005 meaning the pleadings closed in 2005. The Advocate depones further that the two applications filed by the Plaintiff, one dated 26th September, 2005 and the other dated 16th December, 2005 have never been set down for hearing and or heard.
Mr. Karungo for the Applicant submitted that the continued delay in having the suit heard has prejudiced his client as it continues to engage Advocates and to incur costs. Counsel urged the court to dismiss the suit since the application was unopposed.
This suit was filed on 26th September, 2005 and the substantive prayer is for Mandatory Injunction compelling the Defendant to release Motor Vehicle registration number KAU 418G to the Plaintiff. The Defendant, Stanbic Bank, had agreed to finance the Plaintiff to buy the suit Chattel however, it is averred in the plaint, the vehicle was repossessed less than a month later on allegations of arrears of payment of installments towards the Finance facility granted by the Defendant.
There was a Statement of Defence filed by the Defendant on 17th October 2005 in which it is averred that the Plaintiff failed to meet the terms and conditions set for the financing of the Hire Purchase by the Defendant Bank. Part of the terms and conditions that were not met are cited in the Statement of Defence as including the fact the Plaintiff submitted fraudulent Bank Statement to the Defendant in order to procure it to release the finances to him.
I see from the proceedings that the Plaintiff first filed an application simultaneously with the suit seeking to have the suit vehicle released to him, pending the hearing of the application and of the suit.
The court granted him on 27th September, 2005 an order stopping the Defendant from disposing off the suit vehicle until the application was heard. Thereafter on 16th December 2005, the Plaintiff withdrew this application and put in a fresh one, also under Certificate of Urgency, seeking inter alia, to have the Defendant ordered to immediately release the vehicle to him. The court declined to certify the application as urgent and directed that hearing dates be taken at the registry. Dates were taken. However when the application came for hearing on 31st March 2006 there was no appearance for the Applicant. The application was stood over generally.
Having considered the chronology of this suit, I am satisfied that there has been inordinate and inexcusable delay in setting this suit down for hearing. Considering that the subject matter is a motor vehicle, the continued delay in disposing of the suit means that the value of same is being compromised, whether or not it has since been disposed off.
The Respondent failed to come to court to oppose the application or in the very least to explain the delay. In the circumstances I find that the Plaintiff has lost interest in this case. I therefore allow the application and dismiss the suit with costs of the suit and of this application to the Applicant/Defendant.
Dated at Nairobi this 16th day of November, 2007.
LESIIT J
JUDGE
Read, signed and delivered in the presence of:
Mr. Karungo for Applicant
LESIIT J
JUDGE