[2015] KEHC 1259 (KLR)
The court found that neither the plaintiff nor the defendants had taken any step or filed any application in the suit for over six years. Notice to show cause was properly issued to all parties, and neither party showed sufficient cause to the satisfaction of the court as to why the suit should not be dismissed. The...
Source-derived case information.
- Citation
- [2015] KEHC 1259 (KLR)
- Parties
- Plaintiff: Isaiah Iruki; Defendant: Catherine Stafano; Defendant: Isaac Bahati Stafano
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 102 of 2009
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Order 17 Rule 2, Counter Claims, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Iruki
Plaintiff
Catherine Stafano
Defendant
Isaac Bahati Stafano
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether the existence of a counter-claim by the defendants is sufficient cause to prevent dismissal of the suit.
Ratio Decidendi
The court found that neither the plaintiff nor the defendants had taken any step or filed any application in the suit for over six years. Notice to show cause was properly issued to all parties, and neither party showed sufficient cause to the satisfaction of the court as to why the suit should not be dismissed. The existence of a counter-claim alone, without any active steps or explanation, was not considered sufficient cause. Accordingly, the court exercised its discretion under Order 17 Rule 2(1) of the Civil Procedure Rules and dismissed the suit for want of prosecution, making no order as to costs.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO 102 OF 2009
ISAIAH IRUKI............................................................................................PLAINTIFF
VERSUS
CATHERINE STAFANO .............................................................1ST DEFENDANT
ISAAC BAHATI STAFANO...........................................................2ND DEFENDANT
R U L I N G
Notice had been properly issued for parties to show cause why this suit should not be dismissed for want of prosecution in terms of Order 17 Rule 2 of the Civil Procedure Rules.
On 4th November, 2015 the Plaintiff was not present. He was also not present on 08/09/15 when the matter was before this Court’s Deputy Registrar .
Miss Rimita, for the defendant urged the Court not to dismiss the suit as the defendants had a Counter-claim.
Order 17 Rule 2(1) states:
“In any suit in which no application has been made or step taken by either party for one year, the Court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit”.
It should be noted that notice is given to all parties. All parties, whether plaintiffs or defendants are required to show cause why a suit should not be dismissed . The defendant if he has a Counter Claim and is opposed to the dismissal of a suit is required to show cause to the satisfaction of the Court.
In this matter, neither the absent Plaintiff nor the defendant have shown to the satisfaction of this Court why this suit should not be dismissed. The parties do not dispute that they had not taken any step of filed any application between 26/10/2009 and when they were required to show cause. The intervening period amounts to a period of over 6 years.
I find that no cause has been shown to the satisfaction of this Court that this suit should not be dismissed. In the Circumstances, this suit is dismissed. I issue no order as to costs.
It is so ordered.
Delivered in Open Court at Meru this 9th day of November, 2015 in the presence of:
Cc Daniel/Lilian
Baithambu h/b Ondari for Plaintiff
Kmathi Kiara for Defendant/Respondent
P. M. NJOROGE
JUDGE