[2012] KEHC 4142 (KLR)
The court found that the suit had been dormant for approximately six years since the last step was taken by any party. Both the plaintiff and the 2nd defendant were duly served with the application for dismissal but failed to respond or appear. The court held that under Order 17 Rule 2(3) of the Civil Procedure...
Source-derived case information.
- Citation
- [2012] KEHC 4142 (KLR)
- Parties
- Plaintiff: Dr. James Muriuki; Defendant: National Bank of Kenya Ltd; Defendant: Legacy Auctioneering Service
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 21 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the 1st defendant
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. James Muriuki
Plaintiff
National Bank of Kenya Ltd
Defendant
Legacy Auctioneering Service
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 inordinate delay by the plaintiff.
- 2 Whether the continued pendency of the suit prejudices the defendants.
- 3 Whether proper notice was given to the parties before seeking dismissal.
Ratio Decidendi
The court found that the suit had been dormant for approximately six years since the last step was taken by any party. Both the plaintiff and the 2nd defendant were duly served with the application for dismissal but failed to respond or appear. The court held that under Order 17 Rule 2(3) of the Civil Procedure Rules, any party may apply for dismissal of a suit if no application has been made for one year. The court determined that the parties were no longer interested in prosecuting the matter, and that litigation must come to an end. Consequently, the court exercised its discretion to dismiss the suit for want of prosecution, awarding costs to the 1st defendant.
Court Disposition
suit dismissed for want of prosecution with costs to the 1st defendant
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the 1st defendant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAKURU
Civil Suit 21 of 2002
DR. JAMES MURIUKI…………….......…………..…PLAINTIFF/APPLICANT
VERSUS
NATIONAL BANK OF KENYA LTD...........….1ST DEFENDANT/APPLICANT LEGACY AUCTIONEERING SERVICE….2ND DEFENDANT/RESPONDENT
RULING
The Notice of Motion dated 3/2/2012 was filed by the 1st defendant applicant, pursuant to Order 17 Rule 2, 51 Rule (1) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The applicant seeks an order that this suit be dismissed for want of prosecution because 6 years have lapsed without the plaintiff setting it down for hearing; that the plaintiff is indolent and seems to have no intention to prosecute the suit in the near future and the continued subsistence of the suit has prejudiced the applicant. The applicant contends that litigation must come to an end and the plaintiff will not be prejudiced in any way if the order is granted.
The court is satisfied that both Cheboi and Co. Advocates for the 2nd defendant and Ochieng Gai Advocates for the plaintiff were duly served as evidenced by the affidavits of service filed herein on 5/6/2012 sworn by Peter Musyoka Kisilu, the counsel did not appear or file any reply. The application proceeded ex-parte.
This suit was filed way back in 2002 about 10 years ago. The last step taken by the plaintiff n this matter was on 12/6/2006 when an amended plaint was filed and the defendants filed an amended defence and counter claim on 3/7/06. Since then all the parties have gone to sleep. Under Order 17 Rule 2(3) any party to a suit may apply for dismissal of a suit if no application has been made by either party for one year, by giving notice in writing to the parties. As noted above, it is six years since any step was taken by any of the parties in this matter. The parties have been duly notified. They are not interested in the suit anymore. Litigation must come to an end. I therefore grant the order that this suit be dismissed with costs to the 1st defendant.
DATED and DELIVERED this 6th day of June, 2012.
R.P.V. WENDOH JUDGE
PRESENT: N/A for the plaintiff/respondent Mr. Maragia holding brief for Ms Omwenga for the defendants/applicants Kennedy – Court Clerk