[2014] KEHC 2681 (KLR)
The court found that the Plaintiff had not taken any discernible step to prosecute the suit for over a decade since its reinstatement, and even after the present application for dismissal was filed, the Plaintiff failed to respond or show any interest in proceeding with the case. The court held that the Plaintiff...
Source-derived case information.
- Citation
- [2014] KEHC 2681 (KLR)
- Parties
- Plaintiff: Kenya Projects Investment Limited; Defendant: Kenya Commercial Bank; Respondent: Kenya National Trading Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3295 of 1993
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Projects Investment Limited
Plaintiff
Kenya Commercial Bank
Defendant
Kenya National Trading Corporation
Respondent
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the Plaintiff's suit should be dismissed for want of prosecution under Order 17, rule 2 of the Civil Procedure Rules, 2010.
- 2 Whether the Plaintiff has demonstrated any interest or taken any steps to prosecute the suit since reinstatement.
Ratio Decidendi
The court found that the Plaintiff had not taken any discernible step to prosecute the suit for over a decade since its reinstatement, and even after the present application for dismissal was filed, the Plaintiff failed to respond or show any interest in proceeding with the case. The court held that the Plaintiff had lost interest in the suit, and there was no justification for allowing the matter to remain pending indefinitely. The application for dismissal for want of prosecution was therefore allowed under Order 17, rule 2 of the Civil Procedure Rules, 2010, and the suit was dismissed with costs to both the Defendant and the Third-Party.
Court Disposition
suit dismissed for want of prosecution
Orders
- The Plaintiff’s suit is dismissed for want of prosecution with costs to both Defendant and Third-Party.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO 3295 OF 1993
KENYA PROJECTS INVESTMENT LIMITED.........................PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK....……..………...….........…...DEFENDANT
AND
KENYA NATIONAL TRADING CORPORATION.................THIRD PARTY
R U L I N G
1. I have perused the court record herein. The Plaintiff’s suit was filed on 8th July 1993. The Defendant filed its defence on 24th August 1993 and the Plaintiff filed its reply to defence on 21st October 1993. The Defendant was subsequently granted leave to serve a third-party notice, and it filed its third-party notice dated 7th February 1994 on 8th February 1994, thus bringing the Third-Party, Kenya National Trading Corporation, into the suit. An agreed statement of issues as between the Plaintiff and the Defendant dated 4th November 1993 was filed.
2. It appears that neither the Plaintiff nor the Defendant did much to push the case towards hearing. The Third-Party then moved the court by notice of motion dated 20th March 2002 for dismissal of the suit for want of prosecution. That application was allowed on 10th July 2002 and the suit dismissed for want of prosecution. But the suit was reinstated on 5th June 2003 upon application by the Plaintiff. Thereafter not much happened towards hearing of the suit, though the suit came up for hearing on 21st February 2005 when, at the behest of the Plaintiff, it was adjourned generally. Since then the Plaintiff has apparently not taken any steps towards prosecution of its case.
3. The Third-Party has now come to court for the second time to seek dismissal of the Plaintiffs suit for want of prosecution. This is by notice of motion dated 10th September 2013 which is the subject of this ruling. The application is brought under Order 17, rule 2(3) as read with subrule (1) of the Civil Procedure Rules, 2010 (the Rules). The Third-Party being a party in the suit, it is no doubt entitled to bring the application. Despite service upon it the Plaintiff has not filed any response to the application. The Defendant supports the application for dismissal.
4. There cannot be many cases as old as this one in the records of this court. This case is now 21 years old, yet the Plaintiff has not taken any discernible step towards prosecution of the same. Even after the case was once dismissed (and reinstated) over 10 years ago, the Plaintiff was not prompted into action! Even the present application has not moved it.
5. I have no hesitation at all in allowing the present application. It is apparent that the Plaintiff has totally lost interest in this suit. There is no reason why it should be allowed to continue pending.
6. The Plaintiff’s suit is hereby dismissed for want of prosecution with costs to both Defendant and Third-Party. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 1ST DAY OF OCTOBER 2014
H P G WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 3RD DAY OF OCTOBER 2014