[2007] KEHC 876 (KLR)
The court found that the plaintiff had been served with the application for dismissal but failed to file any opposition or provide any explanation for the delay in prosecuting the suit. The delay since the last court appearance in January 2002 was deemed inordinate and inexcusable. Applying the principles from Allen...
Source-derived case information.
- Citation
- [2007] KEHC 876 (KLR)
- Parties
- Plaintiff: Ivesco Assurance Co. Ltd; Defendant: Maymuna Kassim; Defendant: Ismail Maalim Ali T/A Black See Petroleum Co
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 359 of 2000
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Plaintiff's suit dismissed for want of prosecution. Defendants awarded costs of the application and the entire suit.
- Judges
- JL Osiemo
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ivesco Assurance Co. Ltd
Plaintiff
Maymuna Kassim
Defendant
Ismail Maalim Ali T/A Black See Petroleum Co
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution due to inordinate and inexcusable delay.
- 2 Whether the defendants are entitled to costs of the application and the suit.
Ratio Decidendi
The court found that the plaintiff had been served with the application for dismissal but failed to file any opposition or provide any explanation for the delay in prosecuting the suit. The delay since the last court appearance in January 2002 was deemed inordinate and inexcusable. Applying the principles from Allen v. Sir Alfred McAlpine and Sons and the Civil Procedure Rules, the court exercised its discretion in favour of the defendants and dismissed the plaintiff's suit for want of prosecution. The defendants were also awarded costs for both the application and the entire suit.
Court Disposition
Plaintiff's suit dismissed for want of prosecution. Defendants awarded costs of the application and the entire suit.
Orders
- Plaintiff's suit is dismissed for want of prosecution.
- Defendants are awarded costs of this application and the entire suit.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 359 of 2000
IVESCO ASSURANCE CO. LTD……………....................................……………PLAINTIFF
VERSUS
MAYMUNA KASSIM……………....................................…………………1ST DEFENDANT
ISMAIL MAALIM ALI T/A BLACK SEE PETROLEUM CO……………2ND DEFENDANT
R U L I N G
This is an application by the defendants brought under Order XVI R 5 of the Civil Procedure rules seeking orders that the plaintiff’s suit be dismissed for want of prosecution. It also seeks costs of this application as well as costs for the entire suit.
The application is based on the grounds that there has been inordinate delay in setting this suit down for hearing.
The application is also supported by an affidavit sworn by the applicant in which he avers that the suit was filed on 22nd February 2000 and defence was filed on 17th April 2000. The pleadings closed in May 2000 and the matter was last in court on 30th January 2002 when it was taken out by consent and stood over generally. Since then the plaintiff has failed, ignored and or refused to take any steps to have the matter set down for hearing.
Mr. Mbugua counsel for the defendants submitted that this is a fit case for dismissal for want of prosecution. The plaintiff was served with this application but did not file any papers in opposition to the same nor did he attend these proceedings.
A consideration of the principles to be applied in deciding whether or not a suit ought to be dismissed for want of prosecution were stated in the case of Allen v. Sir Alfred McAlpine and Sons 1968 All ER 307. It must be shown that:
(a) the delay is inordinate
(b) the inordinate delay is inexcusable or
(c) the defendant is likely to be prejudiced.
Delay is a matter of fact to be decided on the circumstances of each case. Where the reason for delay is offered, the court should be lenient and allow the plaintiff an opportunity to have his case decided on merit.
In the instant case the Plaintiff was served with the application but did not file any papers in opposition nor has he offered any reason for the delay.
That being the case, I have no option but to exercise my discretion in favour of the defendant and dismiss Plaintiff’s suit for want of prosecution and it is so ordered.
The defendants will also have costs of this application as well as the entire suit.
Dated and delivered at Nairobi this 28th day of November 2007.
J. L. A. OSIEMO
JUDGE