[2010] KEHC 3733 (KLR)
The court found that the Plaintiff failed to set down the suit for hearing within the required time after the close of pleadings and did not provide any excuse for the delay. The Defendant was entitled to apply for dismissal under Order 16 rule 5 of the Civil Procedure Rules. The delay of over two and a half years...
Source-derived case information.
- Citation
- [2010] KEHC 3733 (KLR)
- Parties
- Plaintiff: Michael Kigotho Kamore; Defendant: Joseph Kanyi Gachogu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 362 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Eviction Orders, Permanent Injunction, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Kigotho Kamore
Plaintiff
Joseph Kanyi Gachogu
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 inordinate delay.
- 2 Whether the Plaintiff provided any reasonable excuse for failing to set down the suit for hearing.
Ratio Decidendi
The court found that the Plaintiff failed to set down the suit for hearing within the required time after the close of pleadings and did not provide any excuse for the delay. The Defendant was entitled to apply for dismissal under Order 16 rule 5 of the Civil Procedure Rules. The delay of over two and a half years was deemed inordinate, and the Plaintiff's inaction justified the dismissal of the suit for want of prosecution. The court exercised its discretion to dismiss the suit with costs to the Defendant, emphasizing the importance of timely prosecution of cases to avoid prejudice and unnecessary delay in the administration of justice.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The Plaintiff's suit is dismissed for want of prosecution.
- The Plaintiff shall pay the costs of the suit to the Defendant.
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 362 of 2005
MICHAEL KIGOTHO KAMORE …………………………….PLAINTIFF
V E R S U S
JOSEPH KANYI GACHOGU …………….……………….DEFENDANT
R U L I N G
The Plaintiff filed this suit on 30th March, 2005 seeking orders of eviction and permanent injunction against the Defendant who had allegedly trespassed onto his land parcel LR. No. LARI/ESCARPMENT/T.92. The Defendant filed defence and counterclaim on 11th May, 2005 which prompted the Plaintiff to file reply to defence and to the counterclaim on 12th October, 2005. Nothing else happened to the case until the Defendant filed the present motion on 23rd September, 2008 seeking to have the Plaintiff’s suit dismissed with costs for want of prosecution. His contention was that the Plaintiff has not set down the suit for hearing since pleadings closed. The application was served but elicited no response.
The application was brought under Order 16 rules 1(1), 5 and 6 of the Civil Procedure Rules. If it is taken that pleadings closed 14 days after the reply to defence and counterclaim, the Defendant had to wait for three years before bringing the application under Order 16 rule 6 of the Civil Procedure Rulesto have the suit dismissed for want of prosecution. But, under rule 5, the Plaintiff was obliged to set down the suit for hearing within three months of the close of proceedings. When he failed to do that the Defendant had two options: either to set down the suit for hearing or apply to have it dismissed for want of prosecution. He took the later option. Over 2½ years had passed when the application was filed. Since the application, another period of over two years has elapsed. The Plaintiff has not shown any excuse for not setting down the suit for hearing, and, in my view, the delay is inordinate. (See IVITA –VS- KYUMBU [1984] KLR 441). Under Order 16 rule 5 I dismiss the suit with costs.
DATED AND DELIVERED AT NAIROBI
THIS 1st DAY OF MARCH, 2010
A.O. MUCHELULE
J U D G E