[2009] KEHC 978 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for over six years following the dismissal of the injunction application. The only attempt to move the matter was an unsuccessful effort to fix a hearing date in 2007, which did not result in any progress. The court held that such...
Source-derived case information.
- Citation
- [2009] KEHC 978 (KLR)
- Parties
- Plaintiff: Kipsigis Traders Limited; Defendant: Samwel Kiprono Sang
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 85 of 2002
- Procedural Posture
- Civil Suit / 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, Injunctive Relief, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipsigis Traders Limited
Plaintiff
Samwel Kiprono Sang
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution after prolonged inactivity by the plaintiff.
- 2 Whether the plaintiff has provided sufficient cause for the delay in prosecuting the suit.
- 3 Whether the defendant is entitled to costs upon dismissal of the suit.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for over six years following the dismissal of the injunction application. The only attempt to move the matter was an unsuccessful effort to fix a hearing date in 2007, which did not result in any progress. The court held that such prolonged and unexplained delay constituted sufficient grounds for dismissal for want of prosecution under the Civil Procedure Rules. The court further noted that it has the power to dismiss a suit for want of prosecution even without notice after three years of inactivity. As the plaintiff was served with the application and failed to attend or provide any explanation, the...
Court Disposition
Suit dismissed for want of prosecution with costs to the defendant.
Orders
- The application dated 18th June, 2009 is granted.
- The suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO Civil Suit 85 of 2002
KIPSIGIS TRADERS LIMITED..................................... PLAINTIFF
VERSUS
SAMWEL KIPRONO SANG........................................DEFENDANT
RULING
Application to dismiss suit for want of prosecution
I: Background
1. M/S Kipsigis Traders Ltd the original Plaintiff and respondent in this application, filed a suit on the 19th December, 2002 seeking orders to declare construction on land unsurvyed No. 18 Municipality Council Kericho belongs to them. That a permanent injunction do issue to stop any construction thereon.
2. An application for an injunction was also filed simultaneously on the said day.
3. The defendant/applicant made reply to the application for an injunction. Inter parties hearing was herd before Visram J (as he then was)and a ruling delivered on the 12th February, 2003 in which the Hon. Judge dismissed the prayer for injunction.
4. The plaintiff claims he bought the land from the former mayor of Kericho. The defendant /applicant was able to show he held a title deed to the property.
5. Based on the findings of the case law of
Mansukhalal Jesang Maru
v
Wangari Mathai
Eldoret HCCC. 207/99
Virsam J
and the case of
Livinstone Nkuruna
v
Patrick Seki
CA 31/96
Mulwa J
That a registered owner to title holds the parcel of land absolute, the application for injunction by the Plaintiff/respondent was dismissed.
6. The Plaintiff/respondent took no action further save on 26th July, 2007 when they attempted through their advocates to take dates for hearing. No dates were taken.
7. On 25th June, 2009 the advocate on record for the plaintiff was served with the application dated 18th June, 2009. The application sought orders to dismiss the suit pending before court for lack of prosecution.
II: Application 18th June, 2009
8. Since the ruling of this matter no action was taken. The applicant/defendant prays suit be dismissed.
III: Held
9. For six years this matter has been pending and the plaintiffs have taken no action to have the suit set down for hearing. After three years the court has powers to dismiss a suit with no notice to any party. In this case the said plaintiff has been served through his advocate but failed to attend court.
10. The application be and is hereby granted. This suit be and is accordingly dismissed for lack of prosecution with costs to the defendant/applicant.
DATED this 29th day of September, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
C.K. Korir advocate instructed by M/S C.K. Korir & Co. advocates for the Defendant/applicant – present
M/S Akinyi & Co. advocates for the Plaintiff/Respondent - absent