[2002] KEHC 622 (KLR)
The court found that the plaintiff, after obtaining an interlocutory injunction, failed to take any further steps to prosecute the suit for over three years. The only action taken was a request for judgment in default of defence, which was filed after the expiry of the three-year period and after the defendant's...
Source-derived case information.
- Citation
- [2002] KEHC 622 (KLR)
- Parties
- Plaintiff: Indexco Marketting Services Ltd; Defendant: Flats Investments Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 934 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Interlocutory Injunctions, Default Judgment, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Indexco Marketting Services Ltd
Plaintiff
Flats Investments 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 due to inaction by the plaintiff.
- 2 Whether the interlocutory injunction should be discharged given the plaintiff's failure to prosecute the suit.
Ratio Decidendi
The court found that the plaintiff, after obtaining an interlocutory injunction, failed to take any further steps to prosecute the suit for over three years. The only action taken was a request for judgment in default of defence, which was filed after the expiry of the three-year period and after the defendant's application for dismissal. The plaintiff did not comply with procedural requirements such as filing a list of documents and did not pursue the request for judgment. The court held that the plaintiff had lost interest in the suit and that, with the lease about to expire, the suit would be rendered academic. Therefore, it was futile to allow the suit to proceed. The court allowed...
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution with costs to the defendant.
- The interlocutory injunction granted on 29.4.99 is discharged.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 934 OF 1998
INDEXCO MARKETTING SERVICES LTD…………………PLAINTIFF
VERSUS
FLATS INVESTIMENTS LTD………………………………DEFENDANT
RULING
This is the defendants application for an order that the suit be dismissed for want of prosecution. It was filed on 28. 5.2001. the suit was filed on 23. 4.98 The reliefs sought in the plaint are: (a) Damages for unlawful distress and (b) – a permanent injunction to restrain defendant from closing distaining or infringing on the plaintiffs quiet possession of the rented premises LR No. 209/4360/9 Plaintiff pleads in para 4 of the plaintiff that the lease the subject matter of the suit expired on 31. 3.98 but was renewed for a further six years and with expire on 31. 3.2002.
Plaintiff got a temporary injunction to restrain defendant from detraining closing or interfering with plaintiffs possession on 24. 4.98. On 29. 4.99 the interlocutory injunction was granted until the determination of the suit.Since then plaintiff did not take any other action other than filing a request for judgment in default of defence filed on 4. 6.2001. The Deputy Registrar did not comply with the request and plaintiff counsel did not pursue the matter.
It is clear that the 3 years since the filing of the suit expired on or about 23rd April, 2001. By then plaintiff had not taken any steps to prosecute the suit. The request for judgment was filed after the expiry of the 3 years and after the present application was filed. Plaintiff did not even attempt to file list of documents as required by order X Rule XI A Civil Procedure Rules.Plaintiff had to prosecute the suit before 31. 3.2002 when lease expires but plaintiff took no steps to prosecute the suit. The lease is expiring about 2 weeks time from now. The suit will have been overtaken by events after 31/3/2002
I am satisfied in the circumstances of this case that plaintiff went to sleep after obtaining an interlocutory injunction and lost interest in the prosecution of the suit. As lease is expiring in about 2 weeks time, it is futile to allow plaintiff to prosecute- the suit.
Consequently, I allow the application with costs and dismissed suit for want of prosecution as prayed with costs. The interlocutory injunction given on 29. 4.99 is discharged
E. M. Githinji
Judge
13. 3.2002
Mr. Gachie for Mr. Mbigi present
Mr. Adera for Joshi for plaintiff present