[2003] KEHC 56 (KLR)
The court found that the Plaintiff failed to take any action to prosecute the suit for over a year, despite being at liberty to proceed after the Defendant did not file an amended defence within the stipulated time. The Plaintiff's argument that pleadings were not closed was rejected, as the Defendant was entitled...
Source-derived case information.
- Citation
- [2003] KEHC 56 (KLR)
- Parties
- Applicant: J.G. Builders; Respondent: Plan International
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 109 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Judges
- EN Juma
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J.G. Builders
Applicant
Plan International
Respondent
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.
- 2 Whether the failure by the Defendant to file an amended defence prevented the Plaintiff from prosecuting the suit.
Ratio Decidendi
The court found that the Plaintiff failed to take any action to prosecute the suit for over a year, despite being at liberty to proceed after the Defendant did not file an amended defence within the stipulated time. The Plaintiff's argument that pleadings were not closed was rejected, as the Defendant was entitled to stand by the original defence. The court emphasized that it would not condone laxity by advocates and granted the application for dismissal for want of prosecution, with costs to the Defendant.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the Defendant.
Full Case Text
Judgment text and source record
14 paragraphs
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL CASE NO. 109 OF 1998
J.G. BUILDERS ………………………………………… APPLICANT
VERSUS
PLAN INTERNATIONAL ……………………………… RESPONDENT
RULING
By an application dated 24th November 2002 and filed in court in June 2002 under Order XVI Rule 5 of the Civil Procedure Rules, the Applicant sought to have this suit dismissed for want of prosecution.
The record shows that this suit was filed on 29th May, 1998 in which the Plaintiff was represented by counsel. On the 28th August, 1998, the Plaintiff filed a notice in court which was undated under which he terminated the services of his counsel. The record does not show when the Plaintiff’s new advocate was appointed. It, however, shows that on 4th September, 1999 leave was granted to the Plaintiff to amend his plaint and the Defendant was at liberty to file his amended defence within fourteen days. The suit was later fixed for hearing on 5th June, 2000 and it appears that both counsel had not read their brief and got the court to record another consent order giving the Defendant leave to file his amended defence. This order was superfluous as the Defendant had already been given leave in September 1999. No action was taken for the whole of year 2001 until this application by the Defendant to have the suit dismissed for want of prosecution.
In his replying affidavit, the advocate for the Plaintiff deponed that the Defendant was ordered to amend his defence which todate he has not amended and as such the pleadings are not closed.
The Plaintiff’s contention cannot stand as the Defendant had been given fourteen days in which to file his amended defence. It follows that after the amended defence was not filed within the stipulated time, then the Defendant stood by its original defence on the file. It was incumbent upon the Plaintiff to prosecute his case. He took a whole year doing nothing.
This court is not going to condone the laxity of the advocates. The application for dismissal of the suit for want of prosecution is therefore granted as prayed with costs to the Defendant.
Dated this ………………….. day of …………………………..2003.
J.V.O. JUMA
JUDGE