[2018] KEHC 494 (KLR)
The court found that the plaintiffs had been given ample opportunity and sufficient time to move the matter towards hearing but failed to comply with court orders, including those requiring compliance with Order 11 of the Civil Procedure Rules and listing the matter for pre-trial directions. The plaintiffs admitted...
Source-derived case information.
- Citation
- [2018] KEHC 494 (KLR)
- Parties
- Plaintiff: Isaiah Kubai; Plaintiff: Joseph Ole Tipape; Plaintiff: David Kinyua Mbaggia; Defendant: Munir Abubakar Masquid
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 585 of 2009
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Kubai
Plaintiff
Joseph Ole Tipape
Plaintiff
David Kinyua Mbaggia
Plaintiff
Munir Abubakar Masquid
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to prolonged inaction by the plaintiffs.
- 2 Whether the plaintiffs provided sufficient explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the plaintiffs had been given ample opportunity and sufficient time to move the matter towards hearing but failed to comply with court orders, including those requiring compliance with Order 11 of the Civil Procedure Rules and listing the matter for pre-trial directions. The plaintiffs admitted to delay but offered no satisfactory explanation. The court concluded that no good reason had been provided for the prolonged inaction since 2009, and the plaintiffs' conduct amounted to an abuse of the court process. Accordingly, the suit was dismissed for want of prosecution with costs to the defendant.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO.585 OF 2009
ISAIAH KUBAI.................................1ST PLAINTIFF
JOSEPH OLE TIPAPE....................2ND PLAINTIFF
DAVID KINYUA MBAGGIA.........3RD PLAINTIFF
VERSUS
MUNIR ABUBAKAR MASQUID.....DEFENDANT
RULING
The suit herein was filed way back on the 27th day of October, 2009. Due to the slow pace at which it was being prosecuted, the defendant filed an application dated 28th May, 2014 to have the suit dismissed for want of prosecution.
The said application was heard by Hon. Justice Mbogholi but he dismissed the same with costs to the defendant. The Judge directed the plaintiff to take discernible steps within 30 days after delivery of the ruling in order to move the case towards hearing and to this end, the plaintiff was ordered to take a date for pre-trial directions as soon as possible (within 30 days).
The plaintiff did not list the matter for directions as ordered by the court until the 29th June 2015 and even then, the plaintiff had not yet complied with order 11 of Civil Procedure Rules. The matter was listed before the Deputy Registrar who ordered the plaintiff to comply within 30 days from the date thereof. On 4th day of August 2015, the matter was again in court and the plaintiff was yet to comply and he was given a further 14 days to do so but todate he has not complied.
The court listed the matter for notice to show cause on the 21st September 2018. In response to the said notice, Isaiah Kubai, one of the plaintiffs filed a replying affidavit. I have perused that replying affidavit and also the record of the court. The deponent admits there has been a delay in prosecuting the matter but he has not explained the delay.
The record will show that the plaintiffs have been given sufficient time to move the matter towards hearing but they have done little if nothing much. The order of Justice Mbogholi given in his ruling delivered on the 4th day of March 2015 was never complied with.
I find that no good reason has been given why the suit has not been prosecuted since its inception in the year 2009. The same is hereby dismissed for want of prosecution with costs to the defendant.
Dated, Signed and Delivered at Nairobi this 19th day of October, 2018
.......................
L. NJUGUNA
JUDGE
In the presence of:-
…………………………….. For the Plaintiff
……………………………… For the Defendant