[2016] KEHC 8559 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the case since 24th June 2009, a period of almost seven years. No explanation was offered for the delay. The court concluded that the plaintiff had lost interest in the matter and that the continued existence of the suit was an unnecessary...
Source-derived case information.
- Citation
- [2016] KEHC 8559 (KLR)
- Parties
- Plaintiff: James Kabau Muriuki; Defendant: Phoenix of E.A. Assurance Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 381 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution; costs awarded to defendant
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kabau Muriuki
Plaintiff
Phoenix of E.A. Assurance Company Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiff's prolonged inaction.
- 2 Whether the plaintiff provided any explanation for the delay in prosecuting the suit.
- 3 Whether the continued pendency of the suit is prejudicial to the defendant.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the case since 24th June 2009, a period of almost seven years. No explanation was offered for the delay. The court concluded that the plaintiff had lost interest in the matter and that the continued existence of the suit was an unnecessary burden on the defendant. In the interests of justice and efficient case management, the court exercised its discretion to dismiss the suit for want of prosecution and awarded costs to the defendant.
Court Disposition
suit dismissed for want of prosecution; costs awarded to defendant
Orders
- The suit is dismissed forthwith for want of prosecution.
- The costs of the application dated 18th August 2015 and the costs of the suit are awarded to the defendant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 381 OF 2009
JAMES KABAU MURIUKI………..……..……….………………….....PLAINTIFF
VERSUS -
PHOENIX OF E.A. ASSURANCE COMPANY LIMITED..................DEFENDANT
RULING
1. The defendant has asked the court to dismiss the plaintiff’s suit, for want of prosecution.
2. The suit was filed on 26th May 2009.
3. After the defendant was served with the Plaint and Summons, it entered appearance on 10th June 2009. Thereafter, the defendant’s defence was filed on 14th June 2009.
4. Since the 24th of June 2009 the plaintiff had not taken any steps to prosecute his case.
5. On 18th November 2011, the defendant filed an application for the dismissal of the suit. However, when the application came up for Hearing on 24th January 2012, the defendant failed to attend court.
6. Mabeya J. dismissed the defendant’s application, for non-attendance.
7. The defendant waited for a period of 4 years, and then filed a second application, for the dismissal of the suit. This Ruling is in relation to that application.
8. I note that the plaintiff had failed to take any steps to prosecute his case, since 24th June 2009.
9. There has been no explanation tendered by the plaintiff for his failure to take steps in the case.
10. Secondly, the inactivity has continued for an inordinately long period of time.
11. Thirdly, the cause of action was said to have arisen on 25th May 2008. Therefore, it is now almost 8 years since the cause of action accrued.
12. In the circumstances, I am satisfied that the plaintiff has lost interest in the case. And because the continued existence of the case is an un-necessary burden on the defendant, justice demands that this litigation be brought to an end. Therefore, I now order that the suit be dismissed forthwith. The costs of the application dated 18th August 2015 and also the costs of the suit, are awarded to the defendant.
DATED, SIGNED and DELIVERED at NAIROBI this18th day of April 2016.
FRED A. OCHIENG
JUDGE
Ruling read in open court in the presence of
No appearance for the Plaintiff
Miss Wambugu for Kissinger for the Defendant
Mr. C. Odhiambo, Court clerk.