[2009] KEHC 1689 (KLR)
The court found that the plaintiffs had failed to take any meaningful steps to prosecute the suit for several years, despite being given additional time after a previous application for dismissal was dismissed. The plaintiffs' explanation that the summons were not signed and sealed by the Registrar was deemed...
Source-derived case information.
- Citation
- [2009] KEHC 1689 (KLR)
- Parties
- Plaintiff: Jatco Transporters & Tours Agency Ltd.; Plaintiff: Daniel Mutua Muoki; Defendant: Jason Njiru Kithinji t/a Style of Jetco Cabs; Defendant: Big Nippon Ltd.; Defendant: Samuel M. Warutere; Defendant: Joseph Kipkorir Chebii; Defendant: Jetco Cabs Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 197 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Service of Summons, Res Judicata
- 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
Jatco Transporters & Tours Agency Ltd.
Plaintiff
Daniel Mutua Muoki
Plaintiff
Jason Njiru Kithinji t/a Style of Jetco Cabs
Defendant
Big Nippon Ltd.
Defendant
Samuel M. Warutere
Defendant
Joseph Kipkorir Chebii
Defendant
Jetco Cabs Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction by the plaintiff.
- 2 Whether failure to serve signed and sealed summons justifies the delay in prosecuting the suit.
- 3 Whether the application for dismissal is res judicata.
Ratio Decidendi
The court found that the plaintiffs had failed to take any meaningful steps to prosecute the suit for several years, despite being given additional time after a previous application for dismissal was dismissed. The plaintiffs' explanation that the summons were not signed and sealed by the Registrar was deemed insufficient, as it was their responsibility to follow up with the Registry to ensure proper service. The court held that the relevant provisions of the Civil Procedure Rules empowered it to dismiss the suit for want of prosecution, and that the application was not barred by res judicata since the statutory period had lapsed again. Accordingly, the court allowed the application and...
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- Costs shall be paid by the plaintiff in the suit and in this application.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 197 of 2003
JATCO TRANSPORTERS & TOURS
AGENCY LTD. ………………………...………………….. 1ST PLAINTIFF
DANIEL MUTUA MUOKI .................................................... 2ND PLAINTIFF
VERSUS
JASON NJIRU KITHINJI t/a
STYLE OF JETCO CABS …………..………………… 1ST DEFENDANT
BIG NIPPON LTD. …………………...………………... 2ND DEFENDANT
SAMUEL M. WARUTERE ………....…………………. 3RD DEFENDANT
JOSEPH KIPKORIR CHEBII …………...…………… 4TH DEFENDANT
JETCO CABS LIMITED ……………………..………. 5TH DEFENDANT
R U L I N G
In this case summons have never been issued. There are copies on the file unsigned and unsealed, therefore not served. Order V Rule 1 (2)states that where summons have not been served on the defendant, the court may extend the validity of summons from time to time where it is satisfied it is just so to do.
However, 1 (7) where no application is made the court may without notice dismiss the suit at the expiry of 24 months from the issue of original summons. In this case the plaintiff filed copies of summons and has never checked at the Registry to see if the same has been signed and sealed for service. This suit was filed in the year 2003. Several years now have passed.
The other issue raised is that no action has been taken by the plaintiff to prosecute suit. The defendant made another application on 17/5/06 for dismissal of this suit. The application was dismissed and the plaintiff was given time to prosecute the suit. It is now 2 years and nothing has been done.
It is correct that Order XVI Rules 4, 5 and 6deals with dismissal of suit for want of prosecution, the court has power to proceed notwithstanding either party fails to produce evidence and court may dismiss suit if no action is taken for 3 years. The plaintiff has not given any reasonable explanation as to why he has not moved to prosecute his suit all this period except to say summons not signed by Registrar. The plaintiff ought to have checked with the Registrar.about the summons for purposes of service.
It is said that this application is res judicata. I say not the applicant is entitled to raise the matter every time the period has expired as prescribed in the order. I see no merit in these opposition and I allow the application and grant orders as prayed.
Costs shall be paid by plaintiff in the suit and in this application.
It is so ordered.
DATED, SIGNED and DELIVERED at Nairobi this 6th day of October 2009.
JOYCE N. KHAMINWA
JUDGE