[2007] KEHC 2201 (KLR)
The court found that the plaintiffs had failed to take any steps to prosecute their suit for over 23 years since it was last fixed for hearing in 1994. The plaintiffs did not oppose the application or appear in court. The court held that the delay was inordinate and inexcusable, and that allowing the suit to...
Source-derived case information.
- Citation
- [2007] KEHC 2201 (KLR)
- Parties
- Plaintiff: Isabella Wanjiku; Plaintiff: Esther Wambui; Defendant: Francis Mwangi Thuo; Defendant: John Mbugua Nduati
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2340 of 1985
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- JL Osiemo
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Prejudice to Defendant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isabella Wanjiku
Plaintiff
Esther Wambui
Plaintiff
Francis Mwangi Thuo
Defendant
John Mbugua Nduati
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiffs' suit should be dismissed for want of prosecution due to inordinate and inexcusable delay.
- 2 Whether the delay has caused prejudice to the defendants and made a fair trial impossible.
Ratio Decidendi
The court found that the plaintiffs had failed to take any steps to prosecute their suit for over 23 years since it was last fixed for hearing in 1994. The plaintiffs did not oppose the application or appear in court. The court held that the delay was inordinate and inexcusable, and that allowing the suit to continue would prejudice the defendants and make it impossible to achieve justice. Applying the principles from ALLEN VS. SIR ALFRED MC ALPINE & SONS LTD, the court exercised its discretion to dismiss the suit for want of prosecution, as the requirements for such dismissal were satisfied: the delay was prolonged and inexcusable, and there was a substantial risk of injustice to the...
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- The defendants are awarded the costs of the suit and of the application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2340 of 1985
ISABELLA WANJIKU………........………..…………1ST PLAINTIFF
ESTHER WAMBUI……….…….………….…..…….2ND PLAINTIFF
VERSUS
FRANCIS MWANGI THUO....…………...........…1ST DEFENDANT
JOHN MBUGUA NDUATI………….……………2ND DEFENDANT
RULING
This is an application by the Defendants under Order XVI Rules of the Civil Procedure Rules for an order that the Plaintiff’s suit against him be dismissed for want of prosecution. The Defendant says there has been inordinate delay. In support of the application Mercy Wanjau, Advocate for the Defendant has sworn an affidavit giving grounds for the application.
The suit was filed on August 3, 1985. The relief sought is general damages arising from injuries suffered and expenses incurred as a result of a road accident that occurred on 10th April 1984. The Defendant entered appearance on 3rd September 1985 and filed a defence on 10th September 1985.
This case has been in court for the last 23 years and the last time was fixed for hearing was 28th 1994 and since then the Plaintiff has not taken any steps to set it down for hearing.
The question of delay in bringing actions to speedy conclusion was exhaustively considered by the Court of Appeal in England in ALLEN VS. SIR ALFRED MC ALPINE & SONS LTD [1968] 1 ALL ER 543 where it was held that when the delay is prolonged and inexcusable, and is such as to do grave injustice to the one side or the other or both, the court may in its discretion dismiss the action straight away. On the other hand this power should not be exercised unless the court is satisfied (1) that the default has been intentional contumelious (2) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers (3) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in action or is likely to cause prejudice to the Defendant.
This claim arises out of a road traffic accident. It has been in court for the last 23 years. The Plaintiffs were served but did not file any paper in opposition to the application nor did they appear in court to oppose the application.
The delay is inordinate and inexcusable and the Defendant will be prejudiced if the suit is allowed to continue, and justice cannot be done now.
Accordingly in exercise of my discretion I allow the application and dismiss the suit for want of prosecution.
I award the Defendants the costs of the suit and of this application.
Dated and delivered at Nairobi this 20th day of July 2007.
J.L.A. OSIEMO
JUDGE