[2009] KEHC 2412 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit since 28th October, 2004, a period exceeding four years. The defendant properly applied for dismissal under the relevant provisions of the Civil Procedure Rules. The court was satisfied that the plaintiff had been duly served with...
Source-derived case information.
- Citation
- [2009] KEHC 2412 (KLR)
- Parties
- Plaintiff: Kipkurui Arap Langat; Defendant: National Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 66 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 defendant.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Injunctions, Banking Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipkurui Arap Langat
Plaintiff
National Bank of Kenya
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 under the Civil Procedure Rules.
- 2 Whether the plaintiff has failed to take any steps to prosecute the suit for a prolonged period.
- 3 Whether the defendant is entitled to costs upon dismissal.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit since 28th October, 2004, a period exceeding four years. The defendant properly applied for dismissal under the relevant provisions of the Civil Procedure Rules. The court was satisfied that the plaintiff had been duly served with the application and failed to attend or respond. The court held that the application had merit and that the suit should be dismissed for want of prosecution, with costs to the defendant.
Court Disposition
Suit dismissed for want of prosecution with costs to the defendant.
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the defendant/applicant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Civil Case 66 of 2004
KIPKURUI ARAP LANGAT ………………………………PLAINTIFF/APPLICANT
VERSUS
NATIONAL BANK OF KENYA ……………………DEFENDANT/RESPONDENT
RULING
Application dated 28th May, 2008 seeking orders to dismiss this suitfor want of prosecution
I: Procedure
1. The application dated 28th May, 2008 seeks orders to dismiss the main suit herein filed by the Plaintiff/Respondent on 29th June, 2004 for want of prosecution.
2. The said Plaintiff/Respondent having been served failed to attend Court on the day called out for hearing of this application. The matter proceeded in his absence under order Ixb r 3(a)Civil Procedure Rules when this Court was satisfied that he had been duly served.
II:Background
3. The Plaintiff/Respondent had entered into a contract with the Defendant/Applicant to borrow sums of moneys from the bank amounting to Kshs. 300,000/=. He defaulted in payment and the said bank wished to execute against the default of payment. The Plaintiff filed this suit on the 29th June, 2004 and sought orders of injunction to restrain the Applicant/Defendant bank from executing on the sale of his security.
4. Since 28th October, 2004 no action had been taken on this file. The Defendant/Applicant thereafter filed this current application seeking to dismiss this whole suit for want of prosecution.
III: Application /Opinion
5. The law under Order XVI r 6Civil Procedure Rules requires that where no action to a suit has been taken for three years the Court may suo moto dismiss the suit without notice to any parties. Under order XVI r 1(2)Civil Procedure Rules the matter or suit is left pending for one year with no action the Court may issue a notice to a party then on day the matter is mentioned dismiss the suit.
6. Under order XVI r 5Civil Procedure Rulesan Applicant may apply to Court after three months to set the suit for hearing or have the matter dismissed.
7. In this application before me the Defendant has opted to apply to Court to dismiss the said suit for want of prosecution. They do so after four to five years having now expired.
8. I find that herein that the application has merits. The same is allowed and this Court makes orders to dismiss this suit with costs to the Defendant/Applicant on grounds that the plaintiff has failed to prosecute this suit.
DATEDthis 18th day of March, 2009 atKERICHO
M.A. ANG’AWA
JUDGE
Advocates
I.O. Meroka advocate from M/S Meroka & Co. advocates instructed to hold brief for M/S Githiru & Co. Advocates for the Applicant/Defendant – present
N/A for N/A Koech J.K & Co. advocates for the Respondent/Plaintiff