[2008] KEHC 935 (KLR)
The court found that the plaintiff had failed to prosecute the suit for an inordinate period, with no action taken since 1994, justifying dismissal under Order XVI Rule 5 of the Civil Procedure Rules. However, since interlocutory judgment had already been entered for the special damages claim (Sh 1000/=), the...
Source-derived case information.
- Citation
- [2008] KEHC 935 (KLR)
- Parties
- Plaintiff: Karama Saidi; Defendant: Kenya Cold Storage (1964) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2583 of 1990
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Partial dismissal of suit for want of prosecution; interlocutory judgment for special damages upheld.
- Judges
- JL Osiemo
- Legal Topics
- Dismissal for Want of Prosecution, Interlocutory Judgment, Delay in Prosecution, Personal Injury Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Karama Saidi
Plaintiff
Kenya Cold Storage (1964) Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the interlocutory judgment previously entered in favour of the plaintiff affects the dismissal of the remaining claims.
Ratio Decidendi
The court found that the plaintiff had failed to prosecute the suit for an inordinate period, with no action taken since 1994, justifying dismissal under Order XVI Rule 5 of the Civil Procedure Rules. However, since interlocutory judgment had already been entered for the special damages claim (Sh 1000/=), the dismissal only applied to the remaining claims for general damages and costs. The court exercised its discretion to dismiss the suit in part, ensuring that the interlocutory judgment previously entered remained valid and enforceable, while the rest of the plaintiff's claims were struck out for want of prosecution.
Court Disposition
Partial dismissal of suit for want of prosecution; interlocutory judgment for special damages upheld.
Orders
- The plaintiff's suit is dismissed in relation to claims for general damages and costs for want of prosecution.
- The interlocutory judgment for Sh 1000/= in special damages with interest at court rates stands.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
EIN TH HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2583 of 1990
KARAMA SAIDI………………………......………………….PLAINTIFF
VERSUS
KENYACOLD STORAGE (1964) LIMITED…….…….DEFENDANT
R U L I N G
By this notice of motion expressed to be brought under Order XVI Rules 5 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act the defendant seeks orders that the plaintiff’s suit be dismissed for want of prosecution. The defendant says that there has been inordinate delay in prosecution this suit. In support of the applicant, Ben Simiyu has sworn an affidavit giving grounds for the application. The facts as gathered from the pleadings giving rise to this litigation briefly may be stated.
On 30th May 1987 the plaintiff was lawfully walking along Mombasa – Lunga Lunga Road when he was hit and knocked down by a motor vehicle registration No KWT 386 which belonged to the 2nd defendant and was being driven by the 1st defendant. He filed this suit against both defendants jointly and severally on 25th May 1990 for special damages amounting to Sh 1000/= as well as general damages and costs of the suit. The defendants upon being served with summons failed to enter appearance and file defences.
By letter dated 26th August 1992 the plaintiff sought interlocutory judgment in default of appearance and on 17th February 1993 interlocutory judgment was entered by the Deputy Registrar in the following terms:
The 1st and 2nd defendants herein BAKARI HAMISI AND KENYA COLD STORAGE CO. LTD having been duly served with summons to enter appearance and having failed to enter appearance within the prescribed period and on the application by the plaintiff’s Advocate dated 26th August 1992 and filed in court on 22nd September 1993, I enter interlocutory judgments in the sum of Sh 1000/= together with interest thereon at court rates from the date of filing the suit. The award of costs shall await judgment upon the remaining claim when the suit will be set down for assessment for general damages.
The respondent was properly served and there is return of service filed but did not attend. Mr Kabaiko Counsel appearing for the defendant submitted that suit has been in court for 17 years and the last time it was in court was on 21st April 1994 when Counsel for the plaintiff informed the court that interlocutory judgment had already been obtained and it was stood over generally. Counsel submits that there has been inordinate delay on the part of the plaintiff in bringing his suit to speedy conclusion and urged then court to dismiss the suit with costs.
Having considered the application, the affidavit in support and the submissions by counsel I am satisfied that this is a proper case for dismissal under rule 5 of Order XVI of the Civil Procedure Rules.
But the plaintiff having obtained interlocutory judgment in respect of prayer (a) of the claim and having been awarded Sh. 1000/=, the dismissal is in relation to prayer (b) and (c) of the plaintiff’s claim with costs.
Delivered and dated at Nairobi this 16th day of May 2008.
J. L. A. OSIEMO
JUDGE