[2008] KEHC 3130 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for approximately three years after pleadings closed and documents were filed. No explanation for the delay was provided, as the plaintiff did not oppose the application. Applying the established legal test, the court held that the...
Source-derived case information.
- Citation
- [2008] KEHC 3130 (KLR)
- Parties
- Plaintiff: Megawatt Distributors Co. Ltd; Defendant: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1062 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution; costs awarded to the defendant.
- Judges
- JL Osiemo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court Discretion, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Megawatt Distributors Co. Ltd
Plaintiff
City Council of Nairobi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution due to prolonged and inexcusable delay.
- 2 Whether justice can still be done despite the delay if no explanation is provided by the plaintiff.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for approximately three years after pleadings closed and documents were filed. No explanation for the delay was provided, as the plaintiff did not oppose the application. Applying the established legal test, the court held that the delay was inordinate and inexcusable, and in the absence of any justification from the plaintiff, justice could not be served by allowing the suit to remain pending. The court exercised its discretion to dismiss the suit for want of prosecution and awarded costs to the defendant.
Court Disposition
Suit dismissed for want of prosecution; costs awarded to the defendant.
Orders
- The plaintiff's suit is dismissed for want of prosecution.
- The defendant is awarded the costs of the suit.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1062 of 2004
MEGAWATT DISTRIBUTORS CO. LTD……….....…………..PLAINTIFF
VERSUS
CITY COUNCIL OF NAIROBI……………………………….DEFENDANT
R U L I N G
This is an application by the defendant under Order XVI Rule 5 of the Civil Procedure Rules for an order that the Plaintiff’s suit be dismissed for want of prosecution. The application is based on the ground that the Plaintiff has not taken any step to fix the suit down for hearing. The application is also supported by an affidavit sworn by Mary N. Ngethe the Director of Legal Affairs of the Defendant in which she avers that the suit was filed on 8th October 2004; that pleadings were closed on 2nd December 2004; that the Plaintiffs filed the list of documents on 31st May 2005 and that no step has ever been taken to set the suit down for hearing.
The Plaintiff was served with this application but he never filed any papers in opposition.
Mr. Kariuki counsel for the defendant submitted that this is a fit case for dismissal for want of prosecution. He relied upon the case of Naftali Opondo Onyango v. National Bank of Kenya HCC No. 1550 of 2001 (unreported) in which Ringera J (as he then was) quoting from the case of El Monks & Co. Ltd v. Evans [1985] All ELR 581, for the proposition that public policy demands that the business of the courts should be conducted with expedition. The test to be applied in an application for dismissal of a suit for want of prosecution was stated in the case of Ivita v Kyumbu [1984] KLR 441 (unreported) thus:
“The rest applied by the courts in an application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the plaintiff’s explanation for the delay and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter in the discretion of the court”
In the instant suit the delay is about 3 years but the Plaintiff did not file any papers in opposition to this application when he was served to explain the delay which is inordinate. There being no opposition the defendant’s application is allowed in terms of prayers 1 and 2 of the Chamber Summons dated 3rd August 2007. The defendant is also awarded the costs of the suit.
Dated at Nairobi this 28th day of February 2008.
J. L. A. OSIEMO
JUDGE