[2015] KEHC 5193 (KLR)
The court found that the Plaintiff had failed to take any steps to prosecute the suit since 2004, despite being served with the application for dismissal. The duty to prosecute lies with the Plaintiff, and the prolonged delay was deemed inexcusable. The court relied on established legal principles that require suits...
Source-derived case information.
- Citation
- [2015] KEHC 5193 (KLR)
- Parties
- Plaintiff: Magdalina Nyaruai Murogo; Defendant: Margaret Wanjiru Murui; Defendant: Kenya Commercial Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 862 of 1996
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to both defendants
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Duty of Plaintiff, Court Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Magdalina Nyaruai Murogo
Plaintiff
Margaret Wanjiru Murui
Defendant
Kenya Commercial Bank Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay by the plaintiff.
- 2 Whether the delay has occasioned prejudice to the defendants.
Ratio Decidendi
The court found that the Plaintiff had failed to take any steps to prosecute the suit since 2004, despite being served with the application for dismissal. The duty to prosecute lies with the Plaintiff, and the prolonged delay was deemed inexcusable. The court relied on established legal principles that require suits to be prosecuted expeditiously in the interest of justice and public policy. As a result, the court exercised its discretion to dismiss the suit for want of prosecution, finding that the delay had prejudiced the Defendants and undermined the efficient administration of justice.
Court Disposition
suit dismissed for want of prosecution with costs to both defendants
Orders
- The suit is hereby dismissed for want of prosecution.
- Costs awarded to both Defendants.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 862 OF 1996
MAGDALINA NYARUAI MUROGO.............................................PLAINTIFF
VERSUS
MARGARET WANJIRU MURUI
KENYA COMMERCIAL BANK LIMITED.............................DEFENDANTS
RULING
1. The 2nd Defendant herein sought the dismissal of this suit by a Notice of Motion dated 29th September, 2014. It is alleged that the Plaintiff has since 4th June, 2004 when the matter was last in court not taken to prosecute occasioning miscarriage of justice and prejudice to the 2nd Defendant. It was contended the 2nd Defendant's witnesses, if any may be found will find difficulty in recalling their testimonies due to prolonged lapse of time.
2. Despite service of this application, no response was put forth on behalf of the Plaintiff. At the hearing of the application, learned counsel for the 2nd Defendant Mr. Litoro relied on the grounds on the face of the application.
3 .I have taken due consideration of the deposition by Counsel for the 2nd Defendant and read the court record. This suit was filed way back on 4th April, 1996. True to the 2nd Defendant's words, the last activity in court in this matter before the filing of this application took place in the year 2004. The Plaintiff herein despite being served with this application has not bothered to respond thereto.
4. It is worth noting that the duty is majorly on the Plaintiff to ensure expeditious prosecution of a suit once it is filed. I am fortified by the holding of Lord Denning in Fitzpatrick v. Batger & Co. Ltd [1967] 2 ALL ER 657 citing his decision in Reggentine v. Beecholme Bakeries Ltd [1967] 111 Sol. Jo. 216 where he said as follows:-
“It is the duty of the Plaintiff’s advisers to get on with the case. Public policy demands that the business of the Courts should be conducted with expedition … the delay is far beyond anything we can excuse. This action has gone to sleep for nearly two years. It should now be dismissed for want of prosecution.”
5. For the above reasons I make orders that this suit is hereby dismissed with costs to both Defendants for want of prosecution. Order accordingly.
Dated, Signed and Delivered in open court this 27th day of March,2015.
J. K. SERGON
JUDGE
In the presence of:
......................................for the Plaintiff.
......................................for the 1st Defendant.
......................................for the 2nd Defendant.