[2018] KEHC 5628 (KLR)
The court found that the plaintiff had failed to take any meaningful steps to prosecute the suit since 2014, despite being given multiple opportunities and clear directions by the court. The plaintiff's explanations for the delay were found to be inadequate and unsupported by evidence, such as correspondence or...
Source-derived case information.
- Citation
- [2018] KEHC 5628 (KLR)
- Parties
- Plaintiff: Lawrence N. Mwangi t/a Lawrence Mwangi & Co. Advocates; Defendant: The Standard Limited; Defendant: Kwendo Opanga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1130 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Suit for Want of Prosecution
- Outcome
- Plaintiff's suit struck out for want of prosecution with costs to the defendants.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence N. Mwangi t/a Lawrence Mwangi & Co. Advocates
Plaintiff
The Standard Limited
Defendant
Kwendo Opanga
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Suit for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be struck out for want of prosecution due to inordinate delay.
- 2 Whether the plaintiff provided sufficient reasons for the delay in prosecuting the suit.
- 3 Whether the defendants are entitled to costs upon striking out of the suit.
Ratio Decidendi
The court found that the plaintiff had failed to take any meaningful steps to prosecute the suit since 2014, despite being given multiple opportunities and clear directions by the court. The plaintiff's explanations for the delay were found to be inadequate and unsupported by evidence, such as correspondence or attempts to fix hearing dates. The court concluded that the plaintiff had either lost interest in the suit or was indifferent to its outcome. Given the prolonged and unexplained delay, and in the interest of justice and efficient case management, the court exercised its discretion to strike out the suit for want of prosecution, awarding costs to the defendants.
Court Disposition
Plaintiff's suit struck out for want of prosecution with costs to the defendants.
Orders
- The plaintiff's suit is struck out for want of prosecution.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH CO URT OF KENYA
AT NAIROBI
HIGH COURT CIVIL CASE NO. 1130 OF 2006
LAWRENCE N. MWANGI T/A LAWRENCE
MWANGI & CO. ADVOCATES......................PLAINTIFF
VERSUS
THE STANDARD LIMITED..................1ST DEFENDANT
KWENDO OPANGA...............................2ND DEFENDANT
RULING
This suit was filed on 27th October, 2006. Upon service of summons to enter appearance, the defendant’s entered appearance on 2nd November, 2006 and filed a defence on 13th November, 2006. The plaintiff filed a reply to the defence on 21st November, 2006. Since then this suit has never been listed for substantive hearing.
There is now before me an application by way of Notice of Motion dated 15th June, 2017 under Section 1A, 1B and 3A of the Civil Procure Act Cap 21 and Order 17 Rule 2, 3 of the Civil procedure Rules seeking the striking out of the plaintiff’s suit for want of prosecution. The defendants have set out the ground upon which the said order is sought alongside a supporting affidavit sworn by Kevin Wakwaya the Advocate for the defendants.
From the record, this is not the first application seeking the same orders. There is an application dated 16th January, 2006 which was followed by a preliminary objection raised by the plaintiff in that, the application and supporting affidavit pre dated the filing of the suit and therefore it was incompetent and incurably defective. That preliminary objection was rejected. The defendant then filed yet another application dated 16th January, 2007 which application was subsequently withdrawn.
The defendants had filed a similar application on 17th May, 2011 which however was dismissed and the plaintiff allowed prosecuting his suit. The plaintiff did not comply and so the defendants filed yet another application dated 14th June, 2014 seeking the same orders.
When the application was canvassed before Onyancha J, the court dismissed the application in consultation with the advocates, who included the plaintiff herein and once again gave the plaintiff an opportunity with an order “to bring suit to a speedy hearing with liberty to defendants to apply.” That order was made on 29th September, 2014. Once again the plaintiff did not act until this application was filed.
The plaintiff filed a replying affidavit repeating what he told Onyancha J about his absence from the country, but did not give any reasons as to why from 2014 he has not moved the court to have his case heard except the blanket allegation that he could not get hearing dates. There are no letters addressed to the advocates for the defendants inviting them to take hearing dates or to the Deputy Registrar to complain of non-availability of hearing dates.
The application was listed for hearing on 24th May, 2018 and a hearing notice served upon the plaintiff’s advocates who acknowledged receipt on 26th April, 2018. However, on the hearing date, the plaintiff’s counsel did not appear and therefore the court only heard counsel for defendants who relied on the affidavit in support of the application.
Order 17 Rule 2 (3) allows the defendant’s to file this application. The record clearly shows that the plaintiff has either lost interest in the prosecution of his suit or does not care about the outcome. It is the defendants who have consistently alerted the plaintiff of the delay in the prosecution of this matter.
In the circumstances the only order that commends itself is the striking off of the plaintiff’s suit, which I hereby do, with costs to the defendants.
Orders accordingly.
Dated, signed and delivered at Nairobi this 12th Day of June, 2018.
A. MBOGHOLI MSAGHA
JUDGE