[2008] KEHC 2038 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit since October 2003, and that the defendants were entitled to rely on their original defence after service of the amended plaint, as provided by Order VIA rule 1(6) of the Civil Procedure Rules. The plaintiff's argument that the suit was...
Source-derived case information.
- Citation
- [2008] KEHC 2038 (KLR)
- Parties
- Plaintiff: James Gisembo; Defendant: The Clerk Kisii Municipal Council; Defendant: Kisii Municipal Council
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 118 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- DK Musinga
- Legal Topics
- Dismissal for Want of Prosecution, Amended Pleadings, Failure to Prosecute, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
James Gisembo
Plaintiff
The Clerk Kisii Municipal Council
Defendant
Kisii Municipal Council
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.
- 2 Whether the defendants' reliance on their original defence after service of an amended plaint was proper under the Civil Procedure Rules.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit since October 2003, and that the defendants were entitled to rely on their original defence after service of the amended plaint, as provided by Order VIA rule 1(6) of the Civil Procedure Rules. The plaintiff's argument that the suit was unopposed was rejected, as the law deems the original defence to stand unless amended. The court held that the plaintiff had not provided any satisfactory explanation for the delay of nearly five years in prosecuting the suit. The law allows a defendant to either fix a hearing date or apply for dismissal for want of prosecution; the defendants chose the latter. The court was...
Court Disposition
suit dismissed for want of prosecution
Orders
- The plaintiff's suit is dismissed for want of prosecution.
- The plaintiff shall bear the costs of the suit, including the costs of the application.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Civil Case 118 of 2003
JAMES GISEMBA ………….……………………….. PLAINTIFF
VERSUS
THE CLERK KISII MUNICIPAL COUNCIL )
KISII MUNICIPAL COUNCIL ) .….……. DEFENDANTS
RULING
The defendants filed an application by way of notice of motion seeking dismissal of the plaintiff’s suit for want of prosecution. They stated that the suit was filed on 4th August 2003. The suit was last fixed for hearing on 26th February 2004. Since then the plaintiff had not taken any step towards hearing and disposal of the suit.
The plaintiff filed grounds of opposition and stated that the defendants had not filed their pleadings in answer to the amended plaint. As a result, the status quo that obtained on 14th October 2003 had been maintained. Since the plaintiff’s amended plaint remains unchallenged, there was nothing to fix for hearing, the plaintiff stated. He added that the defendants had not made any attempt on their part to have the suit heard.
Mr. Bosire for the defendants and Mr. G. J. M. Masese for the plaintiff made brief submissions in support of their respective clients’ arguments as stated hereinabove. It is not in dispute that the plaintiff has not taken any step towards disposal of this matter since 15th October 2003 when it was last in court. An amended plaint was filed on 29th September 2003. A statement of defence had been filed on 25th September 2003. Mr. G. J. M. Masese was not right in his submission that since the defendants had not filed any defence to the amended plaint, the plaintiff’s suit was unopposed and that there was nothing to fix for hearing. Order VIA rule 1(6) provides as hereunder:
“where a party has pleaded to a pleading which is
subsequently amended and served on him under
subrule (1), then, if that party does not amend
his pleading under the foregoing provisions of this
rule, he shall be taken to the rely on it in answer
to the amended pleading, and Order VI, rule 10(2)
shall have effect at the expiry of the period within
which the pleading could have been amended.”
This in effect means that the defendants chose to rely on their defence and did not deem it appropriate to amend the same even after they were served with the amended plaint. The plaintiff has not advanced any good reason as to why he has not prosecuted his suit for nearly five years. While the law enables a defendant to fix a hearing date for a suit, it also enables him to apply for dismissal of a suit for want of prosecution. The defendants herein chose the latter option.
I am satisfied that the plaintiff’s suit is for dismissal and I hereby dismiss the same for want of prosecution.
The plaintiff shall bear the costs of the suit including the costs of this application.
DATED, SIGNED and DELIVERED at KISII this 25th day of June, 2008.
D. MUSINGA
JUDGE
Delivered in open court in the presence of:
N/A for the plaintiff
Mr. Nyakundi for the defendant.
D. MUSINGA
JUDGE