[2013] KEHC 2228 (KLR)
The court found that the plaintiffs had failed to take any steps to prosecute the suit since it was last in court on 29th June 2011. The application for dismissal was served on the plaintiffs' counsel, but no response was filed and there was no appearance at the hearing. The court concluded that the plaintiffs had...
Source-derived case information.
- Citation
- [2013] KEHC 2228 (KLR)
- Parties
- Plaintiff: Johnson Muthengi Kithete; Plaintiff: Mungi Farmers Tobacco Company Ltd; Defendant: Barclays Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 325 of 2009
- 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
- LN Mutende
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Failure to Prosecute, Costs Award
- 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
Johnson Muthengi Kithete
Plaintiff
Mungi Farmers Tobacco Company Ltd
Plaintiff
Barclays Bank of Kenya Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiffs' suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the plaintiffs have demonstrated any interest in prosecuting the suit.
Ratio Decidendi
The court found that the plaintiffs had failed to take any steps to prosecute the suit since it was last in court on 29th June 2011. The application for dismissal was served on the plaintiffs' counsel, but no response was filed and there was no appearance at the hearing. The court concluded that the plaintiffs had demonstrated a lack of interest in prosecuting the case. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution, as there was no justification for the delay and no opposition to the application.
Court Disposition
Suit dismissed for want of prosecution with costs to the defendant.
Orders
- The suit filed against the defendant is dismissed for want of prosecution.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 325 OF 2009
JOHNSON MUTHENGI KITHETE………………………...1ST PLAINTIFF
MUNGI FARMERS TOBACCO COMPANY LTD…….....2ND PLAINTIFF
VERSUS
BARCLAYS BANK OF KENYA LTD………………………...DEFENDANT
RULING
The Notice of Motion dated 5th April, 2013 is brought pursuant to provisions of section 3A of the Civil Procedure Act; Order 17 Rule 2 of the Civil Procedure Rules and all other enabling provisions of the law.
It seeks an order dismissing the plaintiffs’ suit against the defendant for want of prosecution with costs to the defendant.
It is premised on grounds that there has been inordinate delay on the part of the plaintiff in bringing the suit to a conclusion; the suit was last in court on 10th June, 2010 and the plaintiff has taken no step to prosecute it; and that the delay is a manifestation of the plaintiff’s lack of interest in the prosecution of the suit.
The application is supported by an affidavit sworn by Marion Karanja an advocate in conduct of the defendant’s case suit who depones that from the time the suit was instituted on 29th October 2009 the plaintiff has never set it down for hearing. Failure to prosecute the suit has subjected the defendant to unending litigation.
The application is unopposed.
This suit was filed under certificate of urgency on 29th October 2009. The relief sought was an injunctive order restraining the defendant from advertising for sale properties situated on L.R. Machakos Town/Block 1/438 and L.R. No. Machakos Town Block 1/439 and a declaration that the intended sale was illegal.
The matter was last before court on 29/6/2011. No step has been taken by the plaintiff to prosecute the case. The application serving as a notice to the plaintiff to show cause why the matter could not be dismissed for want of prosecution was served on counsel for the plaintiff on 8th May, 2013. No response to the application was filed. Today they have also failed to appear in court for hearing. They have demonstrated lack of interest in the case.
In the premises, this court has absolutely no reason to disallow the order sought. The suit filed against the defendant is therefore dismissed with costs to the defendant.
DATED, SIGNED andDELIVERED at MACHAKOSthis 24THday of SEPTEMBER, 2013.
L.N. MUTENDE
JUDGE