[2012] KEHC 5360 (KLR)
The court found that the Plaintiff had failed to take any steps to prosecute the suit against the 2nd Defendant for over one year since the last ruling, in contravention of Order 17 Rule 2(1) of the Civil Procedure Rules. Additionally, the Plaint did not disclose any cause of action against the 2nd Defendant. The...
Source-derived case information.
- Citation
- [2012] KEHC 5360 (KLR)
- Parties
- Plaintiff: Lavender Ombima (suing as the legal representative of the estate of Nelson Muchilwa Ombima); Defendant: Meir International Limited; Defendant: Samson Masaba Munikah t/a Munikah & Co. Advocates; Defendant: Development Bank of Kenya Limited; Defendant: Robert Kinyanjui Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 499 of 2009
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit Against 2nd Defendant
- Outcome
- Application granted. Suit against 2nd Defendant struck out and dismissed with costs to Plaintiff.
- Judges
- DO Ogembo
- Legal Topics
- Dismissal for Want of Prosecution, Striking Out Pleadings, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lavender Ombima (suing as the legal representative of the estate of Nelson Muchilwa Ombima)
Plaintiff
Meir International Limited
Defendant
Samson Masaba Munikah t/a Munikah & Co. Advocates
Defendant
Development Bank of Kenya Limited
Defendant
Robert Kinyanjui Kamau
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit Against 2nd Defendant
Legal Issues
- 1 Whether the suit against the 2nd Defendant should be struck out for want of prosecution.
- 2 Whether the Plaint discloses any cause of action against the 2nd Defendant.
- 3 Whether the Plaintiff should bear the costs of the application and suit.
Ratio Decidendi
The court found that the Plaintiff had failed to take any steps to prosecute the suit against the 2nd Defendant for over one year since the last ruling, in contravention of Order 17 Rule 2(1) of the Civil Procedure Rules. Additionally, the Plaint did not disclose any cause of action against the 2nd Defendant. The application to strike out the suit against the 2nd Defendant was unopposed. The court therefore granted the application, struck out the 2nd Defendant from the suit, and ordered that the Plaint as against the 2nd Defendant be dismissed with costs to be paid by the Plaintiff.
Court Disposition
Application granted. Suit against 2nd Defendant struck out and dismissed with costs to Plaintiff.
Orders
- The 2nd Defendant is struck out of the suit.
- The Plaint dated 13th July 2009 in so far as it relates to the 2nd Defendant is struck out and dismissed with costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY COURTS
CIVIL CASE NO. 499 OF 2009
LAVENDER OMBIMA (suing as the legal representativeof the estate of
NELSON MUCHILWA OMBIMA...............................................................PLAINTIFF
- VERSUS -
MEIR INTERNATIONAL LIMITED.................................................1ST DEFENDANT
SAMSON MASABA MUNIKAHT/a MUNIKAH & CO. ADVS...2ND DEFENDANT
DEVELOPMENT BANK OF KENYA LIMITED.............................3RD DEFENDANT
ROBERT KINYANJUI KAMAU......................................................4TH DEFENDANT
R U L I N G
By a Chamber Summons application dated 24th February 2011 brought under Order 17 Rule 2 (1) of the Civil Procedure Rules, 2010 Chapter 21 Laws of Kenya, the Applicant seeks orders namely:-
1)That the Plaint dated 13th July, 2009 in so far as the same relates to the 2nd Defendant be struck out and dismissed with costs.
2)That the costs of the suit and of the application be paid by the Plaintiff.
The application is supported by the grounds on its face viz:-
1. On the 13th of November, 2009 the Honourable Lady Justice Koome dismissed the Plaintiff’s application dated the 13th of July 2009.
2. Since the delivery of the ruling in ground 1 hereinabove the Plaintiff has taken no further step to have this suit fixed for hearing or made any other or further application, a period of over one year.
It is also supported by the affidavit of Mr. Samson Masaba Munikah. It is submitted for the Applicant that the Plaint does not disclose any cause of action against the 2nd Defendant, and that it is over one (1) year since the Plaintiff took any steps in the suit contrary to provisions of order 17 Rule 2 (1) of the Civil Procedure Rules. On these grounds the Applicant seeks to be struck off the suit.
Sijenyi, counsel for the Applicant submitted along the above lines and argued that the suit is scandalous, frivolous and vexatious against the 2nd Defendant and is an abuse of the process of this court.
All parties were served but solicited no response.The application is not opposed.
M/s Githinji, counsel for the 3rd Defendant also did not oppose the application.
I have considered the application on its merit and hereby grant the same and order and direct that the 2nd Defendant be struck out of the suit and the Plaint dated 13th July 2009 in so far as it relates to the 2nd Defendant be struck out and dismissed with costs.
The costs of this application and of the suit shall be paid by the Plaintiff.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBITHIS 19TH DAY OF JANUARY 2012.
E. K. O. OGOLA
JUDGE
PRESENT:
………………………………………... for the Plaintiff
Kariuki h/b for M/s Ongore for the Defendants
Irene – Court clerk