[2018] KEHC 5310 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit since 29th May, 2014, and had not opposed the defendant's application for dismissal. The delay was deemed inordinate and inexcusable, causing prejudice to the defendant. The court held that the plaintiff had lost interest in the...
Source-derived case information.
- Citation
- [2018] KEHC 5310 (KLR)
- Parties
- Plaintiff: Denaice Mumbi Mutinda; Defendant: Barclays Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 404 of 2016
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Injunctions, Statutory Power of Sale, Delay in Prosecution
- 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
Denaice Mumbi Mutinda
Plaintiff
Barclays Bank of Kenya Limited
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 due to inordinate and inexcusable delay.
- 2 Whether the plaintiff's failure to prosecute the case prejudiced the defendant.
- 3 Whether the suit had abated under Order 5 Rule 1(6) of the Civil Procedure Rules due to unsigned summons.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit since 29th May, 2014, and had not opposed the defendant's application for dismissal. The delay was deemed inordinate and inexcusable, causing prejudice to the defendant. The court held that the plaintiff had lost interest in the case and that it was not in the interests of justice to allow the suit to remain on record. However, the court clarified that the suit had not abated under Order 5 Rule 1(6) of the Civil Procedure Rules because the summons to enter appearance had never been issued by the Deputy Registrar. Consequently, the suit was dismissed for want of prosecution, and the defendant was awarded...
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is hereby dismissed with costs to the defendant for want of prosecution.
- The defendant is awarded costs of the Notice of Motion dated 9th January, 2017.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 404 OF 2013
DENAICE MUMBI MUTINDA....................................PLAINTIFF
- VERSUS -
BARCLAYS BANK OF KENYA LIMITED.............DEFENDANT
RULING
1. Denaice Mumbi Mutinda (the plaintiff) filed this case against Barclays Bank of Kenya LTD (The bank)on 13th September, 2013. The main prayer in the plaitniff’s plaint is for a declaration that the charge property LR No. Ngong/Ngong/41160 is invalid and consequently that the bank’s exercise of its statutory right of sale was unlawful. The plaintiff filed an interlocutory application seeking an injunction dated 11th September, 2013.
2. The Court on 18th September, 2013, granted an order for the maintenance of status quo over the charged property. On that date the court also gave directions on the dates of filing the parties submissions. The plaintiff filed her submission on 13th November, 2013 while the bank filed its submissions on 26th November, 2013.
3. In the intervening period, and because the order of injunction had lapsed, the bank scheduled sale of the charge property. As a consequence, the plaintiff filed yet another application for injunction dated 3rd February, 2014.
4. Because the plaintiff failed to attend court, even when summoned, the court on 29th May, 2014 stayed the plaintiff’s application and ordered parties to undertake pre-trial process.
5. The order of the court made on 29th May, 2014, is the last order in this file until the bank filed a Notice of Motion dated 9th January, 2017, seeking dismissal of the suit for want of prosecution.
6. The plaintiff, though served with the application, did not file any documents in opposition nor was there attendance on the plaintiff’s behalf at the hearing of the application.
7. The delay from 29th May, 2014, is inordinate and inexcusable. It is undoubtedly prejudicial to the bank as was stated in the case Nilesh Premchand Muji Shah & Another t/a Ketan Emporium vs Popat & others [2016] eKLR, such delay infringes on a party’s rights and legitimate expectations that the disputes against it would be resolved expeditiously.
8. There is merit in the application – it is clear that the plaintiff has lost interest in this case and the court should not allow it to continue to be on record.
9. The plaintiff, when filing this suit filed summons to enter an appearance but the Deputy Registrar failed to sign them. Accordingly, it cannot be said, as the advocate for the bank submitted, that this suit abated as per order 5 Rule 1 (6) of the Civil Procedure rules because those summons to date have not been issued by the Deputy Registrar of this Court.
10. Accordingly the orders of this court are as follows:
a. This suit is hereby dismissed with costs to the defendant for want of prosecution.
b. The defendant is awarded costs of the Notice of Motion dated 9th January, 2017.
DATED, SIGNED and DELIVERED at NAIROBI this19thday of July2018.
MARY KASANGO
JUDGE
Ruling read in open court in the presence of
Court Assistant....................Sophie
........................................... for the Plaintiff
........................................... for the Defendant