[2008] KEHC 3263 (KLR)
The court found that the plaintiffs had not taken any steps to prosecute the suit since their application for injunction was dismissed on 16th July, 2004. The record supported the defendant's assertion that the plaintiffs had lost interest in the case. In the absence of any response or appearance by the plaintiffs,...
Source-derived case information.
- Citation
- [2008] KEHC 3263 (KLR)
- Parties
- Plaintiff: Francis Ngige Nyoike; Plaintiff: Waigi Paints & Hardware Limited; Defendant: K-Rep Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 807 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution. Costs awarded to the defendant.
- Judges
- AM Cockar
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ngige Nyoike
Plaintiff
Waigi Paints & Hardware Limited
Plaintiff
K-Rep Bank Limited
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 inaction by the plaintiffs.
- 2 Whether the defendant is entitled to costs of the application and the suit.
Ratio Decidendi
The court found that the plaintiffs had not taken any steps to prosecute the suit since their application for injunction was dismissed on 16th July, 2004. The record supported the defendant's assertion that the plaintiffs had lost interest in the case. In the absence of any response or appearance by the plaintiffs, and in light of the clear inaction, the court exercised its discretion to dismiss the suit for want of prosecution. The court further held that the defendant was entitled to the costs of both the application and the suit.
Court Disposition
Suit dismissed for want of prosecution. Costs awarded to the defendant.
Orders
- The suit is dismissed for want of prosecution.
- The defendant is awarded the costs of the application and the entire suit.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 807 of 2003
FRANCIS NGIGE NYOIKE…………………….…….….1ST PLAINTIFF
WAIGI PAINTS & HARDWARE LIMITED…….……….2ND PLAINTIFF
VERSUS
K-REP BANK LIMITED…………………………………..DEFENDANT
RULING
The application is a Notice of Motion dated 4th September, 2006 expressed to be brought under Order XVI rule 5(a) and Order L rule 1 of the Civil Procedure Rules. It seeks an order that this suit be dismissed for want of prosecution as the Plaintiff has not taken any action to prosecute it. It also seeks the costs of the application and of the suit.
The application is supported by the affidavit of J. A. Ougo, Advocate who also argued the application on behalf of the Defendant/Applicant. Despite being served with this application, the Plaintiffs/Respondents have filed no papers and neither were they or their counsel present when this application was argued.
I have considered this application and the contents of Mr. Ougo’s affidavit. The record itself bears out Mr. Ougo’saverments that indeed since filing this suit simultaneously with an application for injunction, and since the application was dismissed on 16th July, 2004, no further step was taken by the Plaintiffs to prepare the suit for hearing. I agree with Mr. Ougo that the Plaintiffs seem to have lost interest in their case. I will allow the application as prayed. The Applicant will get the costs of the application and of the entire suit.
Dated at Nairobi this 18th day of April, 2008.
LESIIT, J
JUDGE
Read, signed and delivered in the presence of:
Mr. Kingara holding brief Mr. Ougo for applicant
LESIIT, J
JUDGE