[2006] KEHC 2865 (KLR)
The court found that more than four years had elapsed since the close of pleadings without the plaintiff taking any steps to set down the suit for hearing. The defendant was entitled under Order XVI Rule 5(a) to apply for dismissal for want of prosecution. The application was unopposed, and the delay was deemed...
Source-derived case information.
- Citation
- [2006] KEHC 2865 (KLR)
- Parties
- Plaintiff: Francis Elijah Mwangi Wahome; Defendant: Bunson Travel Services Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 860 of 1997
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application allowed. Suit against the first defendant dismissed for want of prosecution with costs to the first defendant.
- Judges
- JL Osiemo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award
- 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
Francis Elijah Mwangi Wahome
Plaintiff
Bunson Travel Services Ltd
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 due to inordinate delay.
- 2 Whether the defendant is entitled to costs of the application and the suit.
Ratio Decidendi
The court found that more than four years had elapsed since the close of pleadings without the plaintiff taking any steps to set down the suit for hearing. The defendant was entitled under Order XVI Rule 5(a) to apply for dismissal for want of prosecution. The application was unopposed, and the delay was deemed inordinate and prejudicial to the defendant. Accordingly, the court allowed the application and dismissed the suit as against the first defendant with costs.
Court Disposition
Application allowed. Suit against the first defendant dismissed for want of prosecution with costs to the first defendant.
Orders
- The plaintiff's suit as against the first defendant is dismissed for want of prosecution.
- The first defendant is awarded costs of the suit and the application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 860 of 1997
RANCIS ELIJAH MWANGI WAHOME………....………...…...PLAINTIFF
VERSUS
BUNSON TRAVEL SERVICES LTD……………...……..…DEFENDANT
RULING
This application by the first defendant expressed to be brought under Order XVI Rule 5(a) and (d) seeks orders that the suit as against the first defendant be dismissed for want of prosecution. The applicant also prays for costs of this application.
The application is based on the grounds that:
(1) The plaintiff has failed or neglected, and/or refused to take any steps to set down this matter for hearing since the filing of amended plaint on 26th October 2000. The last of the defences was delivered on 19th April 2002 and the pleadings were closed on 26th April 2002.
(2) There has been inordinate delay by the plaintiff in fixing this matter for hearing which delay is likely to occasion the first defendant great inconvenience and prejudice.
(3) Due to the plaintiff’s inordinate delay aforesaid, the First Defendant is unlikely to trace all its relevant witnesses and/or documents for the fair hearing of this matter.
The plaintiff was served but did not file any papers to oppose the application.
Order XVI Rule 5(a) provides:-
“XVI (a)” If within 3 months after the close of pleadings the plaintiff does not set down the suit for hearing, the defendant may either set down the suit for hearing or apply for its dismissal”
It is now 4 years and 3 months since the pleadings closed and the first Defendant has elected to apply for dismissal. The application is not opposed. Allowed in terms of prayers 1 and 2 of the Notice of Motion dated 8th July 2005. The plaintiff’s suit as against the first defendant is dismissed with costs as well as costs of
this application.
Dated at Nairobi this 2nd day of February, 2006.
J.L.A. OSIEMO
JUDGE