[2015] KEHC 8361 (KLR)
The court found that after the close of pleadings on or about 25th February, 2013, the Plaintiff took no further action to prosecute the suit. The application for dismissal was duly served and remained unopposed, with no Replying Affidavit filed or attendance at the hearing by the Plaintiff. Under Order 17 Rule 2(3)...
Source-derived case information.
- Citation
- [2015] KEHC 8361 (KLR)
- Parties
- Plaintiff: Joseph Mwathi Ruthi; Defendant: Kenya Commercial Bank Limited; Defendant: Susan Wanjiku Gathumbi (Sued as the widow and administrator of the Estate of Joseph Gathumbi Waweru)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 732 of 2012
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- OA Sewe
- Legal Topics
- Dismissal for Want of Prosecution, Permanent Injunctions, Declaratory Orders, Pleadings Closure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwathi Ruthi
Plaintiff
Kenya Commercial Bank Limited
Defendant
Susan Wanjiku Gathumbi (Sued as the widow and administrator of the Estate of Joseph Gathumbi Waweru)
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 under Order 17 Rule 2(3) of the Civil Procedure Rules, 2010.
- 2 Whether the Plaintiff has taken any steps to prosecute the suit for over one year.
- 3 Whether the continued pendency of the suit is prejudicial to the 1st Defendant.
Ratio Decidendi
The court found that after the close of pleadings on or about 25th February, 2013, the Plaintiff took no further action to prosecute the suit. The application for dismissal was duly served and remained unopposed, with no Replying Affidavit filed or attendance at the hearing by the Plaintiff. Under Order 17 Rule 2(3) of the Civil Procedure Rules, any party may apply for dismissal of a suit where no step has been taken for a period of one year. The court determined that the Plaintiff had lost interest in the matter and that the continued pendency of the suit was prejudicial to the 1st Defendant. Accordingly, the application was meritorious and the suit was dismissed for want of prosecution,...
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed with costs for want of prosecution.
- The costs of the application are to be borne by the Plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 732 OF 2012
JOSEPH MWATHI RUTHI………………………...................................……………....PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LIMITED……….…........................................…1ST DEFENDANT
SUSAN WANJIKU GATHUMBI (Sued as the widow and administrator
of the Estate of JOSEPH GATHUMBI WAWERU)…....................................2ND DEFENDANT
RULING
The Notice of Motion dated 9th September, 2015seeks for orders that the Plaintiff’s suit be dismissed with costs for want of prosecution and that the costs of the application be borne by the Plaintiff. It was filed pursuant to Order 17 Rule 2 (3) of the Civil Procedure Rules, 2010 and was predicated on the grounds set forth on the face of the Notice of Motion and well as the averments of Daniel Kimani Kanyagia in the Supporting Affidavit sworn on 9th September, 2015. Those grounds can be summarized as hereunder:
That no step has been taken by the Plaintiff to prosecute the suit for a period exceeding one year.
That the continued pendency of this suit when no active steps are being taken to prosecute it is prejudicial to the 1st Defendant.
That it is in the interests of justice that the matter be dismissed for want of prosecution as the Plaintiff has apparently lost interest in it.
Having perused the Notice of Motion, the Supporting Affidavit and the annextures thereto and considered these in the light of the pleadings and proceedings todate, it is the case that the Plaintiff’s suit was filed on 22nd November, 2012 for a Permanent Injunction and declaratory orders in respect of the impending sale by the 1st Defendant of Property No Gatamaiyu/Kamburu/2027.
The Defendants filed their Defence on 25th January, 2013 and since no Reply thereto was filed, pleadings closed on or about 25th February, 2013. The record shows that no action has been taken thereafter by the Plaintiff with a view of prosecuting this suit.
It is also noteworthy that although the application was duly served, it remains entirely unopposed in that no Replying Affidavit was filed nor any effort made to attend the hearing. Under Order 17 Rule 2 (3) Civil Procedure Rule any party to a suit may apply for its dismissal where no application has been made or action taken by either party for a period of one year.
In the premises, the application dated 9th September, 2015 is meritorious. The same is hereby allowed and orders granted as prayed therein with result that this suit is hereby dismissed with costs for want of prosecution and that the costs of the application be borne by the Plaintiff.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF NOVEMBER 2015
OLGA SEWE
JUDGE