[2009] KEHC 3804 (KLR)
The court found that the plaintiff had more than six months to complete discovery and to ensure the suit was set down for hearing after the court diary was opened. The reasons advanced for the delay were not satisfactory. The court exercised its discretion under Order XVI Rule 5(d) of the Civil Procedure Rules and...
Source-derived case information.
- Citation
- [2009] KEHC 3804 (KLR)
- Parties
- Plaintiff: Joyce Mukuhi Njenga; Defendant: Equity Building Society Ltd.; Defendant: Patrick Kungu Kimata t/a Marchet Auctioneers; Defendant: Agnes Wanjiru Muchai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 359 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution with costs to the applicant.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Court Diary, Discovery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Mukuhi Njenga
Plaintiff
Equity Building Society Ltd.
Defendant
Patrick Kungu Kimata t/a Marchet Auctioneers
Defendant
Agnes Wanjiru Muchai
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiff's failure to take steps to set the suit down for hearing within six months after the court diary was opened.
- 2 Whether the reasons given by the plaintiff for the delay in prosecuting the suit are satisfactory.
Ratio Decidendi
The court found that the plaintiff had more than six months to complete discovery and to ensure the suit was set down for hearing after the court diary was opened. The reasons advanced for the delay were not satisfactory. The court exercised its discretion under Order XVI Rule 5(d) of the Civil Procedure Rules and allowed the application to dismiss the suit for want of prosecution, with costs to the applicant.
Court Disposition
Suit dismissed for want of prosecution with costs to the applicant.
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI COMMERCIAL COURTS COMMERCIAL AND TAX DIVISION)
CIVIL CASE 359 OF 2004
JOYCE MUKUHI NJENGA …...……………………………...PLAINTIFF
VERSUS
EQUITY BUILDING SOCIETY LTD. ….….………… 1ST DEFENDANT
PATRICK KUNGU KIMATAt/a
MARCHET AUCTIONEERS ……………………….. 2ND DEFENDANT
AGNES WANJIRU MUCHAI ……….………………. 3RD DEFENDANT
R U L I N G
Notice of motion dated 2/3/2009 seeking orders to dismiss this suit for want prosecution under the provisions of Order XVI Rule 5 (d).
The grounds are that the last time this matter was in court was on 26/8/08. It is over six months since and the plaintiff has not taken any steps to proceed to set down suit for hearing despite that the court diary for the year 2009 has been open since August 2008.
The application is supported by affidavit of Joseph Gathoga Wairegi which I have read. The replying affidavit of Simon Theuri Wanjohi which I have also read, it is admitted that on 26/8/2008 the ruling was delivered by court. It is also admitted that the court diary was opened in November 2008. It is also stated that the court diary was closed on 4/2/2009. It is also stated that the discovery is not completed. It is clear as admitted the plaintiff has had more than 6 months with which to ensure discovery is completed and also to ensure that the court registry did allocate a hearing date of this suit within that time in the circumstances.
I do not find the reasons for delay satisfactory. I allow the application and grant orders sought with costs.
It is so ordered.
DATED and DELIVERED at Nairobi this 7th day of May 2009.
JOYCE N. KHAMINWA
JUDGE