[2014] KEHC 8770 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute its claim for over four years since the last court attendance, and had not taken out summons to enter appearance since the inception of the proceedings. The court noted that the plaintiff's applications for interlocutory relief had...
Source-derived case information.
- Citation
- [2014] KEHC 8770 (KLR)
- Parties
- Plaintiff: Geor Enterprises Limited; Defendant: Diamond Trust Bank Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 406 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Failure to Prosecute, Summons to Enter Appearance, Interlocutory Applications, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geor Enterprises Limited
Plaintiff
Diamond Trust Bank Kenya Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution.
- 2 Whether the failure to take out summons to enter appearance for over four years is fatal to the suit.
- 3 Whether the plaintiff's inaction demonstrates loss of interest in the claim.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute its claim for over four years since the last court attendance, and had not taken out summons to enter appearance since the inception of the proceedings. The court noted that the plaintiff's applications for interlocutory relief had previously been dismissed, and the subject matter of those applications had been overtaken by events. The plaintiff's continued inaction and failure to respond to the defendant's application or attend court demonstrated a lack of interest in pursuing the claim. Given the prolonged delay and procedural lapses, the court held that the suit was not sustainable and warranted dismissal for...
Court Disposition
suit dismissed for want of prosecution
Orders
- The plaintiff's suit is dismissed for want of prosecution.
- The costs of the application dated 24th June 2014 and the suit are awarded to the defendant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 406 OF 2009
GEOR ENTERPRISES LIMITED….……….….……........PLAINTIFF
- VERSUS -
DIAMOND TRUST BANK KENYA LIMITED................DEFENDANT
RULING
1. The Defendant has invoked the provisions of Order 5 Rule 1 (2) and Rule 1 (6); Rule 2 (1) and Rule 2 (7), as read with Order 17 Rule 2 (3) and Order 51 Rule 1 of the Civil Procedure Rules, to ask the court to dismiss the plaintiff’s suit.
2. The defendant contends that the plaintiff failed to take out summons for over 24 months from the date when the Plaint was filed.
3. Secondly, the plaintiff is said to have failed to take steps to prosecute its case. In other words, the defendant says that there has been a want of prosecution.
4. According to the defendant, the case was last in court on 28th October 2010 when Mugo J. dismissed the plaintiff’s applications dated 4th June 2009 and 27th October 2009, respectively.
5. It is noteworthy that the plaintiff failed to file any response to the application, even though their lawyers were duly served on 30th June 2014.
6. The plaintiff and their lawyers also failed to attend court on 31st July 2014, when the application came up for Hearing.
7. The application dated 24th June 2014 is therefore un-opposed.
8. I have perused the record of the proceedings and noted that the court dismissed the plaintiff’s application for interlocutory Reliefs. The court did so after verifying that the reliefs sought had been overtaken by events.
9. The vehicles which were the subject matter of the applications for injunctive reliefs, had already been sold.
10. Secondly, the court held that the losses, if any, suffered by the plaintiff could be compensated by an award of damages.
11. After the plaintiff’s applications were dismissed, the plaintiff has taken no steps at all to prosecute its claim. It is now more than four (4) years since the case was last in court.
12. Clearly, therefore, the plaintiff appears to have lost all interest in pursuing its claim.
13. Furthermore, the plaintiff never took out summons to enter appearance. Given the lapse of more than four (4) years since the inception of the proceedings herein, it is not possible to have the summons to enter appearance re-issued.
14. For all those reasons, the plaintiff’s suit is not sustainable. It is therefore dismissed.
15. The costs of the application dated 24th June 2014 as well as the costs of the suit are awarded to the defendant.
DATED, SIGNED and DELIVERED at NAIROBI this3rd day of December2014.
FRED A. OCHIENG
JUDGE
Ruling read in open court in the presence of
……………………………………………for the Plaintiff
………………………………………………for the Defendant.
Collins Odhiambo – Court clerk.