[2006] KEHC 1260 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for 11 months after the close of pleadings, exceeding the 3-month period stipulated under Order XVI of the Civil Procedure Rules. The plaintiff did not oppose the application for dismissal. The court held that such delay could...
Source-derived case information.
- Citation
- [2006] KEHC 1260 (KLR)
- Parties
- Plaintiff: Global Gases Kenya Limited; Defendant: The Kenya Power & Lighting Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 926 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Global Gases Kenya Limited
Plaintiff
The Kenya Power & Lighting Company 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 the plaintiff's inaction for 11 months after close of pleadings.
- 2 Whether the delay in prosecuting the suit prejudices the defendant.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for 11 months after the close of pleadings, exceeding the 3-month period stipulated under Order XVI of the Civil Procedure Rules. The plaintiff did not oppose the application for dismissal. The court held that such delay could prejudice the defendant and that the requirements for dismissal for want of prosecution had been met. Accordingly, the suit was dismissed for want of prosecution, and the plaintiff was ordered to pay costs to the defendant.
Court Disposition
suit dismissed for want of prosecution
Orders
- This suit is dismissed as against the defendant for want of prosecution.
- The plaintiff shall pay to the defendant the costs of this suit and the costs of the Notice of Motion dated 7th August, 2006.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 926 of 2002
GLOBAL GASES KENYA LIMITED …………………….............................................……PLAINTIFF
VERSUS
THE KENYA POWER &LIGHTING COMPANY LIMITED …………..……………....DEFENDANT
RULING
The Notice of Motion dated 7th August, 2006 is brought by the Defendant under Order XVI Rule 5(a) and (d) of the Civil Procedure Rules. The Defendant seeks a prayer that this suit be dismissed for want of prosecution. The affidavit in support of the application states that the Plaint was filed on 25th July, 2002 together with an injunction application. On the 25th July, 2002 the Plaintiff was granted exparte temporary injunction which injunction was extended from time to time. The injunction was finally vacated on 14th April, 2005. The Plaintiff was granted leave to amend its plaint on 27th July, 2005. The Defendant filed its amended defence in reply to the amended Plaint on 11th August,2005. The pleadings therefore closed on 25th August, 2005. The deponent stated that it is 11 months since the pleadings closed and the
Plaintiff had failed to take any action to set the suit down for hearing. It was further deponed that the subject matter dated back to 2001 and the long delay in the prosecution of this suit was detrimental to the defendant. The defendant is of the view that the Plaintiff has lost interest in this matter.
When the matter came up for hearing the Advocate holding brief for the Plaintiff’s advocate informed the court that the instructions he had in respect of the application was that the matter would be left to the court to make its determination.
I have considered the matter brought before me. Indeed it is 11 months since the Plaintiff took action to actively prosecute this matter. The Plaintiff does not oppose the application before court and I do find that the same is merited. Order XVI of the civil Procedure Rules provides that a suit can be dismissed if a party does not set it down for hearing within 3 months. The Plaintiff has exceeded that period and such delay can indeed prejudice the defendant. The court therefore, grants the following orders:-
(1) This suit is dismissed as against the Defendant for want of
prosecution.
(2) The Plaintiff shall pay to the defendant the costs of this suit and the costs of the Notice of Motion dated 7th August, 2006.
MARY KASANGO
JUDGE
Dated and delivered this 29th day of September, 2006.
MARY KASANGO
JUDGE