[2007] KEHC 2512 (KLR)
The court found that, although there had been delay in the prosecution of the suit by the Plaintiffs, the circumstances warranted giving them a further opportunity to demonstrate their intention to proceed with the matter. The court exercised its discretion against dismissal at this stage, emphasizing that justice...
Source-derived case information.
- Citation
- [2007] KEHC 2512 (KLR)
- Parties
- Plaintiff: James Samuel Kinyanjui; Plaintiff: Torito Roses Limited; Defendant: Standard Chartered Bank (K) Ltd.; Defendant: Scem Farm Management Limited; Defendant: The Eastern and Southern African Trade and Development Bank
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 93 of 2003
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Dismiss for Want of Prosecution
- Outcome
- Notice of Motion dismissed; Plaintiffs to pay costs to 3rd Defendant; 1st and 2nd Defendants to bear own costs; liberty to apply granted to 3rd Defendant.
- Judges
- JM Khamoni
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Samuel Kinyanjui
Plaintiff
Torito Roses Limited
Plaintiff
Standard Chartered Bank (K) Ltd.
Defendant
Scem Farm Management Limited
Defendant
The Eastern and Southern African Trade and Development Bank
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay by the plaintiffs.
- 2 Whether the plaintiffs should be granted more time to prosecute the suit.
- 3 Who should bear the costs of the notice of motion.
Ratio Decidendi
The court found that, although there had been delay in the prosecution of the suit by the Plaintiffs, the circumstances warranted giving them a further opportunity to demonstrate their intention to proceed with the matter. The court exercised its discretion against dismissal at this stage, emphasizing that justice would be better served by allowing the Plaintiffs more time rather than terminating the suit prematurely. However, the Plaintiffs were penalized in costs for causing the application to be filed. The 3rd Defendant was granted liberty to apply again should further delay occur.
Court Disposition
Notice of Motion dismissed; Plaintiffs to pay costs to 3rd Defendant; 1st and 2nd Defendants to bear own costs; liberty to apply granted to 3rd Defendant.
Orders
- The 3rd Defendant's Notice of Motion dated 7th May 2007 is dismissed.
- The Plaintiffs shall pay the costs of this Notice of Motion to the 3rd Defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 93 OF 2003
JAMES SAMUEL KINYANJUI ………….................................1ST PLAINTIFF
TORITO ROSES LIMITED …………….............................… 2ND PLAINTIFF
versus
STANDARD CHARTERED BANK (K) LTD. …...….….. 1ST DEFENDANT
SCEM FARM MANAGEMENT LIMITED .................…... 2ND DEFENDANT
THE EASTERN AND SOUTHERN AFRICAN
TRADE AND DEVELOPMENT BANK..…3RD DEFENDANT/APPLICANT
RULING
Notice of Motion dated 7th May 2007 praying for the dismissal of the Plaintiff's suit for want of prosecution.
From what has been brought to my attention by the parties who brought also the plaint, the defence, this Notice of Motion, replying affidavit thereof and the record in the case file so far, I feel that this is a case where the Plaintiffs should be given a little more time to exhibit their keenness to prosecute this suit without further delay.
In the circumstances the 3rd Defendant's Notice of Motion dated 7th May 2007 be and is hereby dismissed.
The Plaintiffs to pay costs of this Notice of Motion to the 3rd Defendant because they caused the filing of the Notice of Motion. The 1st and 2nd Defendants each to bear own costs if any, of the Notice of Motion.
The 3rd Defendant to be at liberty to apply in case of further delay in the prosecution of this suit.
Dated this 23rd day of July 2007.
J. M. KHAMONI
JUDGE