[2015] KEHC 4821 (KLR)
The court found that the Plaintiffs had failed to take any steps to prosecute the suit for approximately four years since the last court appearance. The delay was deemed inordinate and inexcusable, especially as the Plaintiffs did not provide any explanation or contest the Defendant's application. The court held...
Source-derived case information.
- Citation
- [2015] KEHC 4821 (KLR)
- Parties
- Plaintiff: James Maina Nderitu; Plaintiff: Top Range Limited; Plaintiff: Josephat M. J. Kinyua; Plaintiff: Tonny Enterprises Limited; Plaintiff: Samuel Muriuki Murage; Plaintiff: Grace Mumbi Kang'ethe; Plaintiff: Irungu Kamau; Defendant: Kenya Power & Lighting Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 151 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution with costs to the Defendant.
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Court Discretion, Prejudice to Defendant
- 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 Maina Nderitu
Plaintiff
Top Range Limited
Plaintiff
Josephat M. J. Kinyua
Plaintiff
Tonny Enterprises Limited
Plaintiff
Samuel Muriuki Murage
Plaintiff
Grace Mumbi Kang'ethe
Plaintiff
Irungu Kamau
Plaintiff
Kenya Power & Lighting 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 prolonged and inexcusable delay by the Plaintiffs.
- 2 Whether the Defendant is likely to suffer prejudice as a result of the Plaintiffs' delay in prosecuting the suit.
Ratio Decidendi
The court found that the Plaintiffs had failed to take any steps to prosecute the suit for approximately four years since the last court appearance. The delay was deemed inordinate and inexcusable, especially as the Plaintiffs did not provide any explanation or contest the Defendant's application. The court held that such delay prejudices the Defendant, who faces the risk of losing evidence or witnesses and suffers unnecessary anxiety due to the indefinite pendency of the suit. In the absence of any justification from the Plaintiffs, the court exercised its discretion to allow the Defendant's application and dismissed the suit for want of prosecution with costs to the Defendant.
Court Disposition
Suit dismissed for want of prosecution with costs to the Defendant.
Orders
- The Defendant's application dated 24th October, 2014 is allowed.
- The Plaintiffs' suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 151 OF 2010
JAMES MAINA NDERITU
TOP RANGE LIMITED
JOSEPHAT M. J. KINYUA
TONNY ENTERPRISES LIMITED
SAMUEL MURIUKI MURAGE
GRACE MUMBI KANG'ETHE
IRUNGU KAMAU.................................................PLAINTIFFS
VERSUS
KENYA POWER & LIGHTING COMPANY LIMITED..DEFENDANT
RULING
The Plaintiffs filed this suit on 11th March, 2010 seeking a permanent injunction restraining the Defendant from disconnecting there electricity. This suit was filed together with a chamber summons seeking injunctive orders pending the hearing and determination of this suit. When the application came up for hearing on 21st June, 2010, learned counsel for the Plaintiffs Mr. Mutiso sought an adjournment and leave to file a further affidavit. The said orders were granted. Since the said date, no further affidavit was filed nor has the Plaintiffs made any progress in proceeding with this matter.
The Defendant has filed a notice of motion dated 24th October, 2014 seeking to dismiss this suit for want of prosecution. It is the Defendant's contention vide the supporting affidavit of John Katiku that since 21st June, 2010 when the matter came up for hearing of the Plaintiffs' application dated 12th March, 2010 which application was not heard following the Plaintiffs' counsel application for adjournment, the Plaintiffs have not taken any action to prosecute the suit.
The application is unopposed. The test to be applied by courts in an application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and, if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, and the court is satisfied with the Plaintiff's excuse for the delay and that justice can still be done to the parties, the action will not be dismissed but will be ordered that it be set down for hearing at an earliest possible time. It means that it is a matter of court's discretion. It is clear from the record that close to four (4) years have lapsed since the last time this matter was before court. The unexplained delay of about four (4) years is in my view inexcusable and inordinate considering that the Defendant has been left hanging on the suit indefinitely. Such a delay is likely to occasion the Defendant prejudice since the Defendant is likely to loose evidence or witnesses, and the delay causes the Defendant unnecessary anxiety. Further to the aforesaid, the issues in the supporting affidavit to this application have not been contested. The Plaintiff has not bothered to file a replying affidavit to explain the delay in prosecuting this suit, the facts as presented by the Defendant are therefore taken to be true. In the circumstances this application is merited and allowed with costs to the Defendant.
Dated, Signed and Delivered in open court this 8th day of May, 2015.
J. K. SERGON
JUDGE
In the presence of:
N/A for the Plaintiffs
Miss. Miring'u h/b for Njuguna for the Defendant