[2007] KEHC 2196 (KLR)
The court found that the plaintiff had not established inordinate and inexcusable delay on the part of the defendant in prosecuting the application dated 19th September 2005. The record showed that the suit had not been dormant, and the last court appearance was only six months prior to the filing of the...
Source-derived case information.
- Citation
- [2007] KEHC 2196 (KLR)
- Parties
- Plaintiff: Joseph Gathirwa; Defendant: East African Portland Cement Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 485 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Exercise of Discretion, Fair Trial Rights
- 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
Joseph Gathirwa
Plaintiff
East African Portland Cement Co. Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the defendant's application should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the delay in prosecuting the application was inexcusable and prejudicial to the plaintiff.
Ratio Decidendi
The court found that the plaintiff had not established inordinate and inexcusable delay on the part of the defendant in prosecuting the application dated 19th September 2005. The record showed that the suit had not been dormant, and the last court appearance was only six months prior to the filing of the application. The court was not persuaded to exercise its discretion in favour of the plaintiff, as the threshold for dismissal for want of prosecution had not been met.
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 31st January 2007 is dismissed with costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 485 of 2004
JOSEPH GATHIRWA ………………..…………………………..PLAINTIFF
VERSUS
EAST AFRICAN PORTLAND CEMENT CO. LTD…...........DEFENDANT
RULING
This is an application by the Plaintiff under Order XVI Rule 5 of the Civil procedure Rules for an order that the Defendant’s application against him dated 19th September 2005 be dismissed for want of prosecution. The Plaintiff says there has been inordinate delay in prosecuting the application. In support of the application Albert S. Kuloba Advocate for the Plaintiff has sworn an affidavit giving grounds for the application. The application was filed on 19th September 2005 seeking orders that the Plaintiff’s suit be struck out with costs.
The defendant in opposing the application filed Grounds of Opposition on 11th June 2007 in which he states that the Defendant’s application the subject of this Notice of Motion was last in court on 24th July 2006 when both parties agreed by consent that the matter be taken out. This is a 2004 suit and was last in court barely 6 months prior to the filing of this application. A matter can only be dismissed if there has been inordinate and inexcusable delay which will give rise to a substantial risK that it is not possible to have a fair trial of the issues in action or is likely to cause prejudice to the other party. The Applicant has not established that there has been inordinate and inexcusable delay on the part of the Respondent in prosecuting the application dated 19th September 2005. And in fact the record will bear me out that the suit has not been dormant. I am not persuaded to exercise my discretion in favour of the Applicant.
Accordingly the Applicant Notice of Motion dated 31st January 2007 is dismissed with costs.
Dated and delivered at Nairobi this 25th day of July 2007.
J.L.A. OSIEMO
JUDGE