[2008] KEHC 2802 (KLR)
The court found that the plaintiff had not taken any meaningful step to prosecute the suit since obtaining interlocutory orders on 28th September 2005. Filing a list of documents was not considered a sufficient step towards prosecution, and there was no evidence that the plaintiff had attempted to set the suit down...
Source-derived case information.
- Citation
- [2008] KEHC 2802 (KLR)
- Parties
- Plaintiff: Grace Nyanchama Miruka; Defendant: National Bank of (K) Ltd
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 59 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Nyanchama Miruka
Plaintiff
National Bank of (K) Ltd
Defendant
Procedural Posture
Civil Suit / 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 plaintiff since obtaining interlocutory orders.
- 2 Whether filing a list of documents constitutes a step towards prosecution of the suit.
- 3 Whether the defendant is entitled to seek dismissal for want of prosecution despite also having the ability to set the suit down for hearing.
Ratio Decidendi
The court found that the plaintiff had not taken any meaningful step to prosecute the suit since obtaining interlocutory orders on 28th September 2005. Filing a list of documents was not considered a sufficient step towards prosecution, and there was no evidence that the plaintiff had attempted to set the suit down for hearing or that hearing dates were unavailable. The court held that the defendant was entitled to seek dismissal for want of prosecution and that the plaintiff had demonstrated no interest in pursuing the suit. Consequently, the suit was dismissed with costs to the defendant.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The plaintiff's suit is dismissed for want of prosecution.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII Civil Suit 59 of 2005
GRACE NYANCHAMA MIRUKA …………..………. PLAINTIFF
VERSUS
NATIONAL BANK OF (K) LTD ………………… DEFENDANT
RULING
The defendant filed an application by way of a Notice of Motion
brought under Order XVI rule 5 of the Civil Procedure Rules.The application seeks dismissal of the plaintiff’s suit for want of prosecution. The application was supported by an affidavit sworn by Damaris Gitonga, the defendant’s Manager in charge of Legal services. She stated that the plaintiff filed this suit on 13/5/2005 and obtained interlocutory order on 28/9/2005. Since 28/9/2005 the plaintiff had not taken any step towards disposal of the suit.
The plaintiff swore a replying affidavit and stated that on 31st May, 2006 she filed her list of documents and on 17th July 2006 her advocate sent a letter to the defendant’s advocate requesting him to file his list of documents but he defendant’s advocate had failed to do so.
Mr. Nyamurongi for the defendant denied that any letter had been sent to the defendant’s advocate. He challenged Mr. Mbunde for the plaintiff to provide evidence that the letter had been sent by registered post as alleged but he plaintiff’s advocate did not have such evidence. Mr. Nyamurongi added that filing a list of documents was not a step towards prosecution of a suit.
Mr. Mbunde urged the court not to allow he defendant’s application, adding that even the defendant could have set down the suit for hearing
Upon perusal of this file I realized that since 28th September, 2005 when the plaintiff obtained some interim orders against the defendant, no effort was made to set down the suit for hearing. Even after service of the defendant’s application, the plaintiff never bothered to request the registry to grant her a hearing date. She cannot argue that since September, 2005 no hearing date was available.
Even if the defendant could have also taken the initiative to set down the suit for hearing, the law allows a defendant to apply for dismissal of a suit for want of prosecution. In an adversarial system of justice, a party is allowed to employ any lawful method as would finalize litigation to his advantage. The defendant cannot therefore be faulted.
The plaintiff has demonstrated no interest in her suit since 28th September, 2005. Consequently I dismiss the same with costs to the defendant.
DATED, SIGNED and DELIVERED at KISII this 20th day of May, 2008.
D. MUSINGA
JUDGE
Delivered in open court in the presence of:
Mr. Anyona for the plaintiff
N/A for the defendant.
D. MUSINGA
JUDGE