[2009] KEHC 1103 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for over twelve months since the last court appearance, and no explanation was provided for this delay. The pleadings had closed approximately thirteen years prior, and the plaintiff had engaged in numerous interlocutory...
Source-derived case information.
- Citation
- [2009] KEHC 1103 (KLR)
- Parties
- Plaintiff: Kenya Local Government Workers Union; Defendant: Nyeri County Council Through The Clerk To The Council
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 13 of 1996
- Procedural Posture
- Civil Case / Ruling on 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, Order Xvi Rule 5, Ex Parte Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Local Government Workers Union
Plaintiff
Nyeri County Council Through The Clerk To The Council
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 under Order XVI rule 5 of the Civil Procedure Rules.
- 2 Whether the delay in prosecuting the suit is inordinate and inexcusable.
- 3 Whether the defendant has suffered prejudice due to the plaintiff's delay.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for over twelve months since the last court appearance, and no explanation was provided for this delay. The pleadings had closed approximately thirteen years prior, and the plaintiff had engaged in numerous interlocutory applications without progressing the main suit. The court held that the delay was inordinate and inexcusable, and that the defendant would be prejudiced by the continued pendency of the suit due to the potential unavailability of key witnesses. Accordingly, the court exercised its discretion under Order XVI rule 5 of the Civil Procedure Rules to dismiss the suit for want of prosecution.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The suit is dismissed for want of prosecution as prayed in the Motion dated 7th May 2009.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Case 13 of 1996
KENYALOCAL GOVERNMENT
WORKERS UNION………………………… PLAINTIFF
Versus
NYERI COUNTY COUNCIL Through
THE CLERK TO THE COUNCIL ……….. DEFENDANT
RULING
The defendant herein, took out the Notice of Motion dated 7th May 2009 in which it applied for this suit to be dismissed for want of prosecution under Order XVI rule 5 of the Civil Procedure Rules. This court allowed the defendant to prosecute the Motion exparte under the provisions of Order L rule 16(3) of the Civil Procedure Rules when the Plaintiff failed to file a replying affidavit nor grounds of opposition despite service having been effected upon it. The Motion is supported by the affidavit of Sammy Karanja Njuguna sworn on 7th May 2009.
It is the submission of the defendant that seven months had elapsed at the time of filing the motion since the suit was last in court yet the plaintiff has not deemed it fit to list the case for hearing. It is said the prolonged delay to have the matter determined has greatly prejudiced the defendant in that it is held at ransom to face an uncertain future.
I have taken into account the grounds set out on the face of the Motion and the facts deponed in the supporting affidavit. It is not in dispute that this suit was last before court on 29th September 2008 for the delivery of the ruling in respect of the application dated 18th February 2008. It is not also in dispute that since then, the plaintiff has not taken any steps to have the suit fixed for hearing. No explanation has been given why it has not moved the registry to fix the suit for hearing. It is now over twelve months since the suit was in court for a ruling yet the plaintiff has not bothered to take the necessary steps to have it listed for hearing. Under Order XVI rule 5 of the Civil Procedure Rules, if three months passes after close of pleadings or the removal of the suit from hearing list or the adjournment of the suit generally, the suit is not set down for hearing, the defendant is entitled to seek for an order to have the suit dismissed for want of prosecution. The record shows that the plaintiff filed this suit on 16th January 1996. The plaint and the summons to enter appearance were served. In the aforesaid plaint the plaintiffs sought for an order of injunction to restrain the defendant from declaring its members redundant. The defendant instructed the firm of Muthoga Gaturu & co. Advocates to enter appearance and file a defence. The aforesaid firm of advocates filed a defence on 8th February 1996. It would appear pleadings closed seven days from the date of service of the defence dated 8th February 1996. It is apparent that pleadings closed about 13 years ago. The plaintiff appear to have engaged itself in a plethora of applications to the extent that it forgot about the main suit. I am convinced that the defendant will be greatly prejudiced if this suit continues to pend since key witnesses it would have relied upon may either be retired, dead and or untraceable. In the circumstances a fair trial is not envisaged.
I find the delay to prosecute the suit to be unexplained, inordinate hence inexcusable . For the above reason this suit is ordered dismissed for want of prosecution as prayed in the Motion dated 7th May 2009 with costs to the defendant.
Dated and delivered this 11th day of November 2009.
J.K. SERGON
JUDGE