[2009] KEHC 2105 (KLR)
The court found that there had been a four-year delay in prosecuting the suit after the close of pleadings, with no satisfactory explanation or evidence that the Plaintiffs' financial situation would improve to allow the matter to proceed. The Plaintiffs' advocates admitted to awaiting further payment before moving...
Source-derived case information.
- Citation
- [2009] KEHC 2105 (KLR)
- Parties
- Plaintiff: Jacqueline Akinyi Otieno; Plaintiff: Teresia Akumu; Defendant: Rashid Mbaruk t/a Tawfiq Bus Services; Defendant: Godfrey Chira Kabaki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 900 of 2000
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion to Dismiss for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution.
- Judges
- JM Khamoni
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Prejudice to Defendant, Costs of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacqueline Akinyi Otieno
Plaintiff
Teresia Akumu
Plaintiff
Rashid Mbaruk t/a Tawfiq Bus Services
Defendant
Godfrey Chira Kabaki
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to a four-year delay after close of pleadings.
- 2 Whether the delay has caused prejudice to the 2nd Defendant (Applicant).
Ratio Decidendi
The court found that there had been a four-year delay in prosecuting the suit after the close of pleadings, with no satisfactory explanation or evidence that the Plaintiffs' financial situation would improve to allow the matter to proceed. The Plaintiffs' advocates admitted to awaiting further payment before moving the suit to hearing, effectively stalling the proceedings indefinitely. The court held that such delay was inordinate and prejudicial to the 2nd Defendant, who faced real injustice if the matter were allowed to continue in limbo. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution in the interests of justice and fairness to the parties.
Court Disposition
Suit dismissed for want of prosecution.
Orders
- The Notice of Motion dated 24th July 2008 is granted as prayed.
- The Plaintiffs' suit against the 2nd Defendant is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL SUIT 900 OF 2000
JACQUELINE AKINYI OTIENO……1ST PLAINTIFF RESPONDENT
TERESIA AKUMU…………………...2ND PLAINTIFF RESPONDENT
- versus-
RASHID MBARUK t/a TAWFIQ…………………....1ST DEFENDANT
BUS SERVICES
GODFREY CHIRA KABAKI……….2ND DEFENDANT APPLICANT
R U L I N G
The 2nd Defendant in this suit has applied through this Notice of Motion dated 24th July 2008 to have the Plaintiff’s suit against him dismissed for want of prosecution.
From the affidavits filed and the grounds on the basis of which the Notice of Motion is filed; there is no dispute that there has been a delay of four years from the time pleadings closed.
The Applicant is now pleading that he is already prejudiced by the long delay. The Respondents have no answer to that, apparently themselves not feeling prejudiced by the long delay, but go on to give the reason that the delay is caused by lack of money to pay for costs of the suit on the side of the Plaintiff. Nothing is brought before the court to show how the financial situation on the side of the Plaintiff’s is going to be improved or how the problem is going to be solved. Ameka And Company, Advocates, who are acting for the Respondents say they have been paid only Ksh.10,000/= and are waiting for more payment before they move the matter to hearing and submit that without that payment the suit cannot move to hearing, and in the end they are saying the matter has to stay and wait for the money to come. I expected them to say that since money was not available to enable the suit be heard, they before or without payment, would now have the suit heard to assist their client so that no prejudice is caused to any party. They are not saying that.
In the circumstances, it appears to me that the Applicant must be facing real injustice in this matter and that he will suffer the same if this Notice of Motion is not granted.
Accordingly, the said Notice of Motion is hereby granted as prayed.
Dated this 5th day of June 2009.
J. M. KHAMONI
JUDGE