[2004] KEHC 488 (KLR)
The court found that since the last hearing on 2.5.2002, the plaintiff had taken no steps to prosecute the suit for over a year. The plaintiff's advocate failed to comply with a previous costs order and did not present any evidence or substantive reason for the delay. The court concluded that the plaintiff was not...
Source-derived case information.
- Citation
- [2004] KEHC 488 (KLR)
- Parties
- Applicant: Kisavi Mutunga; Respondent: The Special District Commissioner, Makueni District; Interested Party: Kavata Mutunga
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 100 of 1998
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application allowed. Suit dismissed for want of prosecution. Costs to the interested party.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kisavi Mutunga
Applicant
The Special District Commissioner, Makueni District
Respondent
Kavata Mutunga
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction by the plaintiff.
- 2 Whether the interested party is entitled to costs of the application and the main suit.
Ratio Decidendi
The court found that since the last hearing on 2.5.2002, the plaintiff had taken no steps to prosecute the suit for over a year. The plaintiff's advocate failed to comply with a previous costs order and did not present any evidence or substantive reason for the delay. The court concluded that the plaintiff was not interested in prosecuting the suit. Accordingly, the application by the interested party for dismissal for want of prosecution was allowed, and costs of both the application and the main suit were awarded to the interested party.
Court Disposition
Application allowed. Suit dismissed for want of prosecution. Costs to the interested party.
Orders
- The suit is dismissed for want of prosecution.
- Costs of the application and the main suit are awarded to the interested party.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL MISC. NO. 100 OF 1998
KISAVI MUTUNGA…………………………………….APPLICANT VERSUS THE SPECIAL DISTRICT COMMISSIONER MAKUENI DISTRICT………………………………RESPODNENT AND KAVATA MUTUNGA…………………….INTERESTED PARTY
R U L I N G
By notice of motion dated 16th September, 2002, the interested party moved the court under order XVI rule 5 (d) Civil Procedure Rules and Section 3A Civil Procedure Act to have the plaintiffs suit dismissed and costs to be paid to the interested party. Grounds upon which the application is grounded are that the suit last came up for hearing on 2. 5.2002 when it was stood over generally with costs to the interested party and it is over 3 months since and the plaintiff has not taken any steps towards setting the suit down for hearing. That the plaintiff is therefore not interested in the suit.
Though Mr. Masika was present in court for the plaintiff and sought to make an application for adjournment, the court noted that he had not complied with the court’s orders to pay Mr. Makau J. A. his costs of 2. 5.2002. He therefore had no evidence before the court and the application proceeded to hearing. The record speaks for itself.
Since 2. 5.2002 there is no step that the plaintiff has been taken towards the prosecution of this matter. It is over one year since. The plaintiff is not keen on having the suit prosecuted and I will allow the interested party’s application to have this suit dismissed for want of prosecution. Costs of this application and the main suit to the interested party applicant.
Dated, read and delivered at Machakos this……………day
of……………..,2004.
R. WENDOH
JUDGE