[2009] KEHC 1884 (KLR)
The court found that the respondent/applicant had been lax in prosecuting the case after the injunction was granted, and that alternative measures such as applying for substituted service on the 1st respondent could have been pursued. However, the court exercised its discretion not to dismiss the suit, reasoning...
Source-derived case information.
- Citation
- [2009] KEHC 1884 (KLR)
- Parties
- Applicant: Dickson Cheruiyot Chepkwony; Respondent: Daniel Kipkoech Maritim; Respondent: National Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 117 of 2006
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss Suit for Want of Prosecution
- Outcome
- Application to dismiss suit for want of prosecution dismissed; suit to proceed; costs awarded to applicant/respondent.
- Legal Topics
- Dismissal for Want of Prosecution, Injunctions, Originating Summons, Substituted Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Cheruiyot Chepkwony
Applicant
Daniel Kipkoech Maritim
Respondent
National Bank of Kenya
Respondent
Procedural Posture
Civil Case / 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 after the grant of an injunction.
- 2 Whether the respondent/applicant's explanation for delay is sufficient to avoid dismissal.
- 3 Whether costs should be awarded for the delay.
Ratio Decidendi
The court found that the respondent/applicant had been lax in prosecuting the case after the injunction was granted, and that alternative measures such as applying for substituted service on the 1st respondent could have been pursued. However, the court exercised its discretion not to dismiss the suit, reasoning that the respondent/applicant should be given an opportunity to proceed with the case. As a condition for this indulgence, the court awarded throw-away costs of Kshs. 5,000 to the applicant/respondent for the day's delay.
Court Disposition
Application to dismiss suit for want of prosecution dismissed; suit to proceed; costs awarded to applicant/respondent.
Orders
- The application to dismiss the suit for want of prosecution is dismissed.
- The respondent/applicant is to pay throw-away costs of Kshs. 5,000 for the day's delay.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO
Civil Case 117 of 2006
DICKSON CHERUIYOT CHEPKWONY............. APPLICANT
VERSUS
DANIEL KIPKOECH MARITIM ................1ST RESPONDENT
NATIONAL BANK OF KENYA.................2ND RESPONDENT
RULING
Application 11th November, 2008 to Dismiss Suit
I: Background
1. The respondent original applicant suing on behalf of the estate of Chemarus Chepkorir Maina filed an originating summons on 18th December, 2006 seeking the orders of the High Court for an injunction restraining the applicant/respondent 1 and 2 from disposing off the suit land being LR KERICHO/KEBENETI/276.
2. The application for an injunction was granted (KimaruJ) on the 22nd March, 2007. As soon as the injunction orders were granted no action was taken by the respondent/applicant.
3. Objections had been raised as to the originating summons as having been filed irregularly, which application by the applicant/respondent was dealt with by Kimaru J.
4. The applicant, respondent now files this application to dismiss this suit for want of prosecution.
II: Application 11. 11. 08
Dismissal of suit for want of prosecution
5. The 2nd respondent deponed to an affidavit that since the injunction had been issued on22nd March, 2007 no action had been taken by the respondent/applicant in the originating summons.
6. She prayed that the suit be dismissed.
7. In reply, the respondent/applicant stated that his advocate had made efforts to trace the1st respondent but was enable to find the said respondent. That was the reasons of delay and prays to compensate the appellant/respondent in costs.
III: Findings
8. I find that the respondent/applicant has been lax in the conduct of this case. It would be feasible that alternative application of substitutive service would have been applied for the 1st respondent. The application for direction thereafter ought to have been filed but had not.
9. I would though dismiss this application on grounds that the respondent/applicant be given an opportunity to proceed with this case.
10. The respondent/applicant agrees to pay costs which costs I hereby award, throw away at Kshs. 5,000/= for to-day.
DATED this 5th day of February, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
S.K. Sigira advocates from M/S Siele Sigira & co. advocates instructed to hold brief for M/S Kimonjo Kiburu & Co. advocates for the Applicant originally 2nd Respondent – present
J.M. Motanya advocate instructed by Motanya & Co. advocates for
Respondent originally applicant – present