[2009] KEHC 1261 (KLR)
The court found that there had been inordinate delay by the 3rd plaintiff in prosecuting the suit, with no reasonable excuse advanced for such delay. The correspondence exhibited did not justify the failure to set the suit down for hearing since 24/4/2007. The court concluded that the 3rd plaintiff had lost interest...
Source-derived case information.
- Citation
- [2009] KEHC 1261 (KLR)
- Parties
- Plaintiff: James Kimathi (t/a K & M Architects); Plaintiff: M.A. Ooro & Others; Plaintiff: Kisa & Partners Consulting Engineers Ltd.; Defendant: Kenya Commercial Bank Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 64 of 2002
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Dismiss for Want of Prosecution
- Outcome
- Application allowed; suit by 3rd plaintiff dismissed for want of prosecution with costs to the defendant.
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Special Damages Claim, Withdrawal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kimathi (t/a K & M Architects)
Plaintiff
M.A. Ooro & Others
Plaintiff
Kisa & Partners Consulting Engineers Ltd.
Plaintiff
Kenya Commercial Bank Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the 3rd plaintiff's suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the delay in setting down the suit for hearing is excusable.
- 3 Whether the defendant has suffered prejudice as a result of the delay.
Ratio Decidendi
The court found that there had been inordinate delay by the 3rd plaintiff in prosecuting the suit, with no reasonable excuse advanced for such delay. The correspondence exhibited did not justify the failure to set the suit down for hearing since 24/4/2007. The court concluded that the 3rd plaintiff had lost interest in the suit, and the delay prejudiced the defendant. Consequently, the court exercised its discretion to allow the application and dismissed the 3rd plaintiff's suit for want of prosecution, awarding costs to the defendant.
Court Disposition
Application allowed; suit by 3rd plaintiff dismissed for want of prosecution with costs to the defendant.
Orders
- The suit by the 3rd plaintiff is dismissed for want of prosecution.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI COMMERCIAL AND ADMIRALTY DIVISION
Civil Case 64 of 2002
JAMES KIMATHI (t/aK & M ARCHITECTS) ……... 1ST PLAINTIFF
M.A. OORO & OTHERS ………………………………. 2ND PLAINTIFF
KISA & PARTNERS CONSULTING
ENGINEERS LTD. ……………………………………... 3RD PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LTD. ……………...….. DEFENDANT
R U L I N G
Notice of Motion dated 14/5/09 is brought under Order XVI Rule 5 (d), Order L Rule 1 and 3, Section 3A Civil Procedure Act, Cap.21 seeking the dismissal of suit by 3rd plaintiff for want of prosecution, on the ground that the 3rd plaintiff has failed to set down the suit for hearing since 24/4/2007. And there is great delay causing the defendant prejudice.
The 1st and 2nd plaintiff have withdrawn their suits against the defendant. The 3rd plaintiff claims special damages for Kshs.6,092,399/=. The 3rd plaintiff has sworn an affidavit through the deponent Frashia M. Githinji, sworn on 2/6/2009 which opposes the application for dismissal in further affidavit by the applicant. Exhibited are letters from 14/12/05 to 26/2/2008 on the subject of arbitration. No instructions have been received yet.
I have noted the authorities relied upon by the parties. However, my view is that there has been inordinate delay and there is no reasonable excuse advanced for such delay. I therefore come to the conclusion that the 3rd plaintiff has lost interest in the suit and I allow the application and grant orders as prayed with costs.
Orders accordingly.
DATED, SIGNED and DELIVERED at Nairobi this 3rd day of November, 2009.
JOYCE N. KHAMINWA
JUDGE