[2015] KEHC 846 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit since pleadings closed over five years ago, and had not responded to the application for dismissal despite being served. The delay was deemed inordinate and inexcusable, indicating a lack of interest in pursuing the case. The court was...
Source-derived case information.
- Citation
- [2015] KEHC 846 (KLR)
- Parties
- Plaintiff: Jack & Jil Supermarkets Limited; Defendant: Viktar Maina Ngunjiri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 183 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution.
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Inordinate Delay, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jack & Jil Supermarkets Limited
Plaintiff
Viktar Maina Ngunjiri
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 inordinate and inexcusable delay by the plaintiff.
- 2 Whether the plaintiff has shown any cause or interest in prosecuting the suit.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit since pleadings closed over five years ago, and had not responded to the application for dismissal despite being served. The delay was deemed inordinate and inexcusable, indicating a lack of interest in pursuing the case. The court was satisfied that the defendant's application was well founded and allowed the motion for dismissal for want of prosecution.
Court Disposition
Suit dismissed for want of prosecution.
Orders
- The defendant's motion dated 31.1.2013 is allowed as prayed.
- The suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 183 OF 2009
JACK & JIL SUPERMARKETS LIMITED.......... PLAINTIFF
VERSUS
VIKTAR MAINA NGUNJIRI...............................DEFENDANT
RULING
Viktar Maina Ngunjiri, the Defendant herein took out the motion dated 31. 1.2013 in which he applied for this suit to be dismissed for want of prosecution. The motion is supported by the affidavit sworn by the Defendant. Despite service of the application being effected upon the firm of S. Musali Mwenesi Advocates for the Plaintiff, no response was filed hence the motion proceeded for hearing exparte.
I have considered the grounds stated on the face of the motion and the facts deponed in the affidavit filed in support of the motion. I have further considered the oral submissions of Miss Migiro learned advocate for the Defendant. It is the submission of the Defendant that pleadings closed on 12th May 2009.
It is argued that a hearing notice for the 30. 9.2009 was served upon the Defendant on 28. 5.2009. It is said that since then the plaintiff has not shown any interest in preparing the suit for trial hence the suit should be dismissed for want of prosecution.
I have carefully perused the record and it is apparent that this suit has never been fixed for hearing since pleadings closed.
The record shows that the Plaintiff filed the motion dated 28. 4.2009 which application was heard and finally dismissed on 14. 12. 2010. An oral application for stay was heard and refused on the same date. Since then, no steps have been taken to have the suit fixed for hearing. It is now more than five years since pleadings closed yet the Plaintiff has not taken steps to have this suit prosecuted. Despite having been served with the motion seeking to dismiss the suit for want of prosecution, the Plaintiff has not filed any response to show cause why the suit should not be dismissed. I find the delay to prosecute to be contumelous inordinate and inexcusable. I am satisfied that the Plaintiff has lost interest in pursuing this case.
In the end, I find the motion dated 31. 1.2013 to be well founded.
It is allowed as prayed.
Dated Signed and Delivered in open court this 6th day of November, 2015.
J. K. SERGON
JUDGE
In the presence of:
………………………………………. for the Plaintiff
……………………………………….for the Defendant