[2011] KEHC 717 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit since its filing in August 2008, and had not responded to the application for dismissal. The request for adjournment was not well founded in law and was declined. The court was satisfied that the plaintiff had no interest in...
Source-derived case information.
- Citation
- [2011] KEHC 717 (KLR)
- Parties
- Plaintiff: John Muruaru Maina; Defendant: Barclays Bank of Kenya Limited; Defendant: Lucy Wangui Irungu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 432 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendants
- Judges
- DK Musinga
- Legal Topics
- Dismissal for Want of Prosecution, Abuse of Court Process, Frivolous and Vexatious Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Muruaru Maina
Plaintiff
Barclays Bank of Kenya Limited
Defendant
Lucy Wangui Irungu
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.
- 2 Whether the suit is scandalous, frivolous, vexatious, or an abuse of the court process.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit since its filing in August 2008, and had not responded to the application for dismissal. The request for adjournment was not well founded in law and was declined. The court was satisfied that the plaintiff had no interest in prosecuting the suit, and that the continued pendency of the suit prejudiced the 1st defendant. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution, with costs to the defendants.
Court Disposition
suit dismissed for want of prosecution with costs to the defendants
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI.
(COMMERCIAL & ADMIRALTY DIVISION)
CIVIL SUIT NO. 432 OF 2008
JOHN MURUARU MAINA ………........................................………………….. PLAINTIFF
VERSUS
BARCLAYS BANK OF KENYA LIMITED …...................................…….1ST DEFENDANT
LUCY WANGUI IRUNGU ……………..………..............................……..2ND DEFENDANT
RULING
1. On 22nd September, 2011 the 1st defendant filed an application by way of Notice of Motion seeking to have this suit dismissed for want of prosecution.
2. In the alternative, the 1st defendant urged the court to dismiss the suit for being scandalous, frivolous and vexatious and for being an abuse of the court process.
3. The application was duly served upon the plaintiff’s advocates and was set down for hearing on 16th November, 2011.
4. The plaintiff’s advocate did not file either a replying affidavit or grounds of opposition.
5. When the application came up for hearing Mr. Omwenga, who held brief for Mr. Mang’erere for the plaintiff, sought an adjournment, saying that the plaintiff’s advocate wanted to file an application to cease from acting for him.
6. The application for adjournment was declined because it was not well premised in law.
7. The suit was filed on 4th August, 2008 but the plaintiff has so far not taken any step to prosecute the same.
8. As long as the suit remains unfinalised it is reflected as a liability in the 1st defendant’s books of accounts, the 1st defendant’s advocate contended.
9. I am satisfied that the plaintiff appears to have no interest at all in prosecuting the suit and consequently it is dismissed with costs to the defendants.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF NOVEMBER, 2011.
D. MUSINGA
JUDGE
In the presence of:
Muriithi – Court Clerk
Mr. Omwange for the Plaintiff
No appearance for the Defendant