[2006] KEHC 1466 (KLR)
The court found that, despite the age of the suit, there had been significant activity, including setting hearing dates and compliance with previous conditions for withdrawal of a similar application. Adjournments were granted by the court for valid reasons, and there was no evidence of deliberate inaction by the...
Source-derived case information.
- Citation
- [2006] KEHC 1466 (KLR)
- Parties
- Plaintiff: Francis Mwanza Mulwa; Defendant: Standard Chartered Bank (K) Ltd
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 45 of 1995
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed with costs in the cause.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Adjournments, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mwanza Mulwa
Plaintiff
Standard Chartered Bank (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 under Order XVI rule 5(d) of the Civil Procedure Rules.
- 2 Whether the plaintiff has demonstrated a lack of interest in prosecuting the suit.
- 3 Whether the conditions for dismissal for want of prosecution have been met.
Ratio Decidendi
The court found that, despite the age of the suit, there had been significant activity, including setting hearing dates and compliance with previous conditions for withdrawal of a similar application. Adjournments were granted by the court for valid reasons, and there was no evidence of deliberate inaction by the plaintiff. The court noted that the plaintiff had demonstrated a desire to prosecute the suit and that the defendant had exaggerated the extent of delay. Additionally, the court recognized systemic delays due to hearing pressures at the station. Consequently, the conditions for dismissal under Order XVI rule 5(d) of the Civil Procedure Rules were not met, and the application for...
Court Disposition
Application for dismissal for want of prosecution dismissed with costs in the cause.
Orders
- The defendant's application for dismissal of the suit for want of prosecution is dismissed.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Case 45 of 1995
FRANCIS MWANZA MULWA…........................................…………………PLAINTIFF
VERSUS
STANDARD CHARTERED BANK (K) LTD...............................................…….DEFENDANT
RULING
The defendant/applicant has applied for the dismissal of this suit by Notice of Motion application dated 31st October 2005. The application is brought under 0. XVI rule 5(d) of the C.P.R. and Section 3A of C.P.A. Before arguing his application, the defendants advocate applied to have the grounds of opposition filed by the respondent in contravention of 0. L rule 16 of C.P.R. struck out which I promptly did. Mr. Musyoka for the applicant submitted that the suit was old having been filed on 15th February, 1995. That the suit had not been set down for haring ever and an attempt to have it heard in 1997 was thwarted by the action of the plaintiff on grounds that there was a suit pending. Mr. Musyoka submitted that the said pending suit was determined in December, 1997. That subsequently the applicant/defendant filed an application for dismissal of this suit for want of prosecution on 18th May 1999 but the same was withdrawn by consent on grounds the plaintiff set suit down for hearing and also paid throw away costs. Mr. Musyoka submitted that same was not done to-date.
That on 20th July, 2000 when the suit was to be heard, it was adjourned on the application of the plaintiff/respondent who were also condemned to pay costs which costs were outstanding to-date. That since 2000 the plaintiff has not set suit down for hearing. That consequently the defendant was suffering prejudice due to loss occasioned by the fact that no interest has been running as the charge the subject matter of the suit. Mr. Musyoka relied on the case of NJUKI GACHUGU VRS GITHI a KLR authority without a citation but which he supplied to the court.
As much as I agree that the case is old having been filed 11 years ago; there seems to be lots of activity in this file. There has been hearing dates set in this matter by the respondent. The hearings did not proceed. In the two instances cited by the applicant that is, in 1997 and 2090, the judgment, in exercise of discretion allowed applications for adjournments made by the plaintiff. The applicant cannot be heard to complain about these adjournments as the court allowed them having been satisfied that they were deserved.
The last time the suit was to be heard was on 20th July, 2000. That means as opposed to Mr. Musyoka’s submission the plaintiff complied with the conditions set between them on 18th may, 1999 when a similar application was withdrawn. As of 20th July, 2000 why the hearing did not take off was because the plaintiff/respondent overlooked to serve a hearing notice on the defendant/applicant. There is nothing to suggest that the plaintiff deliberately failed to serve the hearing notice. On 15th January, 2003, a similar application to the instant one was to be heard but the applicant herein, despite taking hearing dates and serving the plaintiff, did not appear for the hearing. The plaintiff/respondent was present and that is when the application was dismissed for lack of prosecution with costs to the plaintiff.
It is quite apparent to me that the plaintiff has demonstrated that he has been desirous to have the suit heard in the past. It is not therefore true that he has lost interest in this suit.
I find that the defendant has exaggerated the issues to make it appear as if the plaintiff has not wished to prosecute his case.
Further, having been in this court this month, it creates a bit of uneasiness on my part to accept an allegation that a party has failed to take hearing dates. I have seen that no dates seem to be available due to the hearing pressure of work in this station.
I find conditions set under 0. XVI rule 5 (d) of C.P.R. are not met given all the circumstances as outlined herein above. I decline to grant the application and instead I dismiss it with costs in the cause.
Dated and delivered at Machakos this 31st day of May, 2006.
J. Lesiit
JUDGE