[2009] KEHC 2153 (KLR)
The court found that the plaintiffs had not taken any practical steps to prosecute the suit for over fourteen years since it was last in court. The plaintiffs were duly served with the application for dismissal but failed to respond or appear. There was no justification provided for the delay, and the defendants...
Source-derived case information.
- Citation
- [2009] KEHC 2153 (KLR)
- Parties
- Plaintiff: Joseph Ouma Ogutu; Plaintiff: Joseph Okare Ogutu; Plaintiff: Edwin Owinyo Ogutu; Plaintiff: Mathews Ogutu; Plaintiff: George Okoth Ogutu; Plaintiff: Owino Iogutu; Plaintiff: Otieno Ogutu; Defendant: Industrial and Commercial Corporation; Defendant: Denharn David Odhiambo Ogutu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 3185 of 1995
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application allowed; suit dismissed for want of prosecution
- Judges
- JM Khamoni
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ouma Ogutu
Plaintiff
Joseph Okare Ogutu
Plaintiff
Edwin Owinyo Ogutu
Plaintiff
Mathews Ogutu
Plaintiff
George Okoth Ogutu
Plaintiff
Owino Iogutu
Plaintiff
Otieno Ogutu
Plaintiff
Industrial and Commercial Corporation
Defendant
Denharn David Odhiambo Ogutu
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay by the plaintiffs.
- 2 Whether the plaintiffs were properly served with the application for dismissal and failed to respond.
Ratio Decidendi
The court found that the plaintiffs had not taken any practical steps to prosecute the suit for over fourteen years since it was last in court. The plaintiffs were duly served with the application for dismissal but failed to respond or appear. There was no justification provided for the delay, and the defendants were entitled to have the matter dismissed for want of prosecution. The court concluded that there was no good reason to reject the application, and the suit was dismissed as prayed.
Court Disposition
application allowed; suit dismissed for want of prosecution
Orders
- The Notice of Motion dated 16th March 2009 is allowed.
- The plaintiffs' suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 3185 OF 1995
1. JOSEPH OUMA OGUTU
2. JOSEPH OKARE OGUTU
3. EDWIN OWINYO OGUTU
4. MATHEWS OGUTU
5. GEORGE OKOTH OGUTU
6. OWINO IOGUTU
7. OTIENO OGUTU....................................... PLAINTIFFS/RESPODNENTS
VERSUS
INDUSTRIALANDCOMMERCIAL CORPORATION.....................................................1ST DEFENDANT/RESPONDENT
DENHARN DAVID ODHIAMBO OGUTU........................................................................ 2ND DEFENDANT/APPLCIANT
RULING
This Notice of Motion dated 16th March 2009 was filed by the Second Defendant in this suit praying that the Plaintiffs suit be dismissed for want of prosecution – under Order XVI Rule 5 (d) of the Civil Procedure Rules. Section 3A of the Civil Procedure Act was also mentioned but I do not think it is required or important.
The important ground for the Notice of Motion is that over fourteen (14) years have lapsed since the matter was last in court about 5th December 1995 yet the Plaintiff has not taken any practical steps to prosecute the matter. The Plaintiffs therefore seem to have lost interest in the suit and it is fair that the suit be dismissed for want of prosecution.
The First Defendant informed the court through its present advocate Mr. W.K. Cheptumo, that it supported the Second Defendant’s Notice of Motion.
Evidence was tendered that the Plaintiff were duly served through their present advocates M/s N.O. Sumba & Company but they never responded. Hearing before me has therefore proceeded in their absence. They had not filed any opposition to the Notice of Motion though served.
In the circumstances, I have no good reason to reject the said Notice of Motion bearing in mind what Mr. Gitangi for the Applicant First Defendant, and Mr. Odongo for the Second Defendant, told me during the hearing. Accordingly this Notice of Motion dated 16th March 2009 be and is hereby dismissed as prayed.
Dated this 17th day of July 2009.
J.M. KHAMONI
JUDGE