[2009] KEHC 498 (KLR)
The court found that the plaintiff had taken no steps to prosecute the suit since obtaining ex-parte injunction orders on 10th June 2003. The plaintiff was not diligent in prosecuting the application for injunction, and on occasions when the matter was fixed for hearing, it was at the instance of the defendant. The...
Source-derived case information.
- Citation
- [2009] KEHC 498 (KLR)
- Parties
- Plaintiff: Joseph Kibanga’s Kenduiwa; Defendant: National Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 86 of 2003
- Procedural Posture
- Civil Suit / Application for Dismissal for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution with costs to the defendant.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kibanga’s Kenduiwa
Plaintiff
National Bank of Kenya Ltd
Defendant
Procedural Posture
Civil Suit / Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiff's inaction.
- 2 Whether the defendant is entitled to costs of the suit and the application.
Ratio Decidendi
The court found that the plaintiff had taken no steps to prosecute the suit since obtaining ex-parte injunction orders on 10th June 2003. The plaintiff was not diligent in prosecuting the application for injunction, and on occasions when the matter was fixed for hearing, it was at the instance of the defendant. The plaintiff and his counsel failed to appear when the application was scheduled for inter-partes hearing, resulting in its dismissal for want of prosecution. No action was taken by the plaintiff thereafter, and even service of the present application did not prompt any response. The court concluded that the plaintiff had lost interest in the matter and that the defendant was...
Court Disposition
Suit dismissed for want of prosecution with costs to the defendant.
Orders
- The suit is dismissed for want of prosecution.
- The defendant is awarded costs of the suit and the application.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Suit 86 of 2003
JOSEPH KIBANGA’S KENDUIWA…………...…PLAINTIFF
VERSUS
NATIONAL BANK OF KENYA LTD……...…..DEFENDANT
RULING
By its chambers summons dated 16th March 2007, the defendant has applied under Order 16 Rule 5D of the Civil Procedure Rules for the dismissal of this suit for want of prosecution. The application is supported by the affidavit of Mr. Mark Nganga Githiru, counsel for the Defendant, in which he has deposed that since the filing of the suit and obtaining ex-parte orders of injunction on 10th June 2003 the plaintiff has not taken any step to have this suit fixed for hearing.
Having perused the file I agree with counsel for the defendant that since 10th June 2003 when the plaintiff filed this suit and obtained ex-parte orders of injunction he has done absolutely nothing to have the case heard. He was not even keen to prosecute the application for injunction. On the few occasions it was fixed for hearing it was at the instance of the defendant’s counsel. On 15th May 2004 when the application was fixed for hearing inter-partes neither the plaintiff nor his counsel appeared and the application was dismissed for want of prosecution. Since then the plaintiff has done nothing to have the case heard. Not even service of this application upon his counsel has moved him. In the circumstances I allow this application and dismiss this suit for want of prosecution with costs including the costs of this application to the defendant.
DATED and delivered this 18th day of November, 2009.
D. K. MARAGA
JUDGE.