[2008] KEHC 2179 (KLR)
The court found that the plaintiff had not taken any step to prosecute the case since the close of pleadings in April 2000. The plaintiff had also failed to oppose the application for dismissal and had shown no interest in the matter, as evidenced by the fact that all hearing dates were taken by the defendant. The...
Source-derived case information.
- Citation
- [2008] KEHC 2179 (KLR)
- Parties
- Plaintiff: Eunice Jepkemei Toroitich; Defendant: Housing Finance Co. (K) Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 123 of 2000
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Judges
- DK Maraga
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Jepkemei Toroitich
Plaintiff
Housing Finance Co. (K) Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiff's inaction.
- 2 Whether the plaintiff has demonstrated any interest in prosecuting the case.
Ratio Decidendi
The court found that the plaintiff had not taken any step to prosecute the case since the close of pleadings in April 2000. The plaintiff had also failed to oppose the application for dismissal and had shown no interest in the matter, as evidenced by the fact that all hearing dates were taken by the defendant. The court concluded that the plaintiff had lost interest in the suit and that it would be an abuse of process to allow the case to remain pending indefinitely. Accordingly, the court exercised its discretion under Order 16 Rule 5(c) and (d) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act to dismiss the suit for want of prosecution with costs to the defendant.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The suit is dismissed for want of prosecution.
- The plaintiff shall pay the costs of the suit and the application to the defendant.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU Civil Case 123 of 2000
EUNICE JEPKEMEI TOROITICH…….……….PLAINTIFF
VERSUS
HOUSING FINANCE CO. (K) LTD…………DEFENDANT
RULING
In its notice of motion dated 31st January 2008, the defendant seeks under Order 16 Rule 5(c) and (d) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the dismissal of this case for want of prosecution on the ground that the plaintiff appears to have lost interest in the case as she has not taken any step to prosecute it. Although served the plaintiff has not even attempted to oppose this application.
I agree with the averments in the affidavit of Mr. Kisilah Daniel Gor in support of the application that since the close of pleadings on or about 20th April 2000, the plaintiff has not taken any step to prosecute this case. After filing this suit and obtaining an interlocutory injunction which was later set aside, the plaintiff has exhibited an unenthusiastic attitude towards this case. The three hearing dates on 4th April 2005, 22nd June 2006 and 17th November 2006 were all taken by the defendant.
In the circumstances I agree with counsel for the defendant that the plaintiff has no interest in this case. Consequently I allow the defendant’s said application and dismiss this suit with costs including those of this application for want of prosecution.
DATED and delivered at Nakuru this 17th day of July, 2008.
D. K. MARAGA
JUDGE