[2014] KEHC 31 (KLR)
The court found that the plaintiffs had failed to take any meaningful steps to prosecute the suit for over twelve years since its filing, with only two attempts to set the matter down for hearing, both of which did not result in progress. The plaintiffs' counsel admitted inability to trace the plaintiff, and no...
Source-derived case information.
- Citation
- [2014] KEHC 31 (KLR)
- Parties
- Plaintiff: Jayantilal S. Shah; Plaintiff: Builtech Limited; Defendant: Nyaboke G. Onsongo; Defendant: Jaquine Osoro t/a Vigilant Auctioneers; Defendant: Kenya Commercial Bank Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 190 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the plaintiffs
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Abatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jayantilal S. Shah
Plaintiff
Builtech Limited
Plaintiff
Nyaboke G. Onsongo
Defendant
Jaquine Osoro t/a Vigilant Auctioneers
Defendant
Kenya Commercial Bank Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to prolonged inactivity by the plaintiffs.
- 2 Whether the plaintiffs should bear the costs of the suit and the application.
- 3 Whether the suit against the 2nd defendant has abated due to death.
Ratio Decidendi
The court found that the plaintiffs had failed to take any meaningful steps to prosecute the suit for over twelve years since its filing, with only two attempts to set the matter down for hearing, both of which did not result in progress. The plaintiffs' counsel admitted inability to trace the plaintiff, and no response was filed to the application. The court concluded that the plaintiffs had lost interest in the matter, and the only reasonable inference was abandonment of the suit. The court also noted that the suit against the 2nd defendant had abated due to death and lack of substitution. Accordingly, the court held that the application to dismiss for want of prosecution was merited...
Court Disposition
suit dismissed for want of prosecution with costs to the plaintiffs
Orders
- The suit filed herein by the plaintiff is dismissed for want of prosecution.
- The plaintiff shall bear the costs of the suit and this application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 190 OF 2002
JAYANTILAL S. SHAH….………..........................……… 1ST PLAINTIFF
BUILTECH LIMITED……….………............................…. 2ND PLAINTIFF
VERSUS
NYABOKE G. ONSONGO…………….......................…1ST DEFENDANT
JAQUINE OSORO T/A VIGILANT AUCTIONEERS …...2ND DEFENDANT
KENYA COMMERCIAL BANK LTD…...........................3RD DEFENDANT
RULING
The application dated 09/07/2014 seeks that the plaintiff's suit be dismissed for want of prosecution, and the plaintiff be ordered to bear the costs in any event. This is on grounds that, it is over 11 years since the case was filed in court, and neither the plaintiffs nor their counsel have taken any initiative towards prosecuting the case. Further, the 2nd plaintiff who was sued in his personal capacity passed on, in the year 2006, a fact which was made known to the plaintiff - this means the suit against the 2nd defendant has abated.
No response was filed, and the plaintiff’s counsel Mr. Mburu informed this court that he has been unable to trace the plain tiff. A perusal of the record shows that this case was filed in the year 2002, and save for two occasions on 01/ 08/2005 when it was set down for hearing, it has generally remained dormant. Even then, there was no hearing as one of the defence counsel was bereaved.
The matter was next listed on 24/10/2005, but the plaintiff's counsel sought an adjournment as he was engaged before the Court of Appeal in Nairobi. Since then no other steps were taken to have the proceed. This means that for the last nine years, the plaintiff’s interest in the matter had diminished. Twelve years is the sum total of this file’s life, with nothing constructive to show for it. Indeed for the defence counsel's own submission, it is clear the plaintiff has never even made attempts to get in touch or even find out the position regarding the case. The only reasonable inference to be drawn is that the plaintiff has lost interest in the matter. I hold that the application is merited and the suit filed herein by the plaintiff is dismissed with costs to be borne by the plaintiff. The plaintiff shall also bear the costs of this application.
Dated this 7th day of October 2014 at Nakuru
H.A. OMONDI
JUDGE