[2007] KEHC 3784 (KLR)
The court found that the Plaintiff failed to provide any credible or substantiated reason for the delay in prosecuting the suit. The alleged absence of the court file was unsupported by evidence, and the Plaintiff did not demonstrate any effort to fix the suit for hearing or to invite the Defendant to do so. The...
Source-derived case information.
- Citation
- [2007] KEHC 3784 (KLR)
- Parties
- Plaintiff: Kibwana Leasing Limited; Defendant: Kenya Power & Lighting Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1124 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution; costs awarded to Defendant.
- Judges
- CM Kariuki
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kibwana Leasing Limited
Plaintiff
Kenya Power & Lighting Co. Ltd.
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 16 rule 6 of the Civil Procedure Rules.
- 2 Whether the Plaintiff provided a satisfactory explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the Plaintiff failed to provide any credible or substantiated reason for the delay in prosecuting the suit. The alleged absence of the court file was unsupported by evidence, and the Plaintiff did not demonstrate any effort to fix the suit for hearing or to invite the Defendant to do so. The responsibility to prosecute the suit lies primarily with the Plaintiff, and the Defendant is not obligated to set the matter down for hearing. Given the unexplained and unjustified delay since 19/12/05, the court concluded that the requirements for dismissal for want of prosecution were met and granted the Defendant's application accordingly.
Court Disposition
Suit dismissed for want of prosecution; costs awarded to Defendant.
Orders
- The suit is dismissed for want of prosecution since 19/12/05.
- The Plaintiff/Respondent shall pay the costs of both the application and the suit to the Defendant/Applicant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL CASE 1124 OF 2005
KIBWANA LEASING LIMITED……..…………………....PLAINTIFF
VERSUS
KENYA POWER & LIGHTING CO. LTD.………….RESPONDENT
R U L I N G
The Notice of Motion herein, dated 5/6/06, seeks dismissal of the suit for want of prosecution, under Order 16 rule 6 of the Civil Procedure Rules. This is on the grounds, that whereas the suit was filed on 14/9/05, and issues agreed upon on 19/12/05 no action has been taken by the Plaintiff to fix or set down the suit for hearing. The Respondent has never filed its list of documents, even though the Applicant filed its list. In opposition, the Plaintiff/Respondent blames the Defendant/Applicant for not fixing the hearing of the case, even though, it never invited the Defendants to pick such a date at the Registry. The Respondent further avers that the file was missing for a period of 3 months.
A quick perusal of the pleadings clearly shows that there is no evidence whatsoever, that the file could not be traced at any time, from the court registry. Nor did the Respondent produce any letter from the court Registry that the file could not be traced, at any time, since the suit was filed.
It is trite to add that whereas the Applicant/Defendant can fix the hearing date of a suit, primarily, that is not the responsibility of a Defendant. The obligation to prosecute the suit, with due speed and diligence rests on the Plaintiff. The defendant has an option to either fix the suit for hearing or apply for its dismissal. No such an option exists for the Plaintiff/Respondent.
All in all, I have reached the finding and conclusion that no reason, good or otherwise, has been advanced to explain the delay in prosecuting the suit, as by law required.
Accordingly, I grant the Notice of Motion herein, and dismiss the suit for want of prosecution since 19/12/05. I further order that the Respondent/Plaintiff do pay costs of both this application, and the suit herein.
DATED and delivered in Nairobi, this 22nd Day of January 2007.
O.K. MUTUNGI
JUDGE