[2018] KEHC 1841 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit for over two years and six months since the last action, and that this inordinate delay was unexplained and uncontroverted. The court inferred that the plaintiff had lost interest in the matter. The 2nd defendant demonstrated prejudice...
Source-derived case information.
- Citation
- [2018] KEHC 1841 (KLR)
- Parties
- Plaintiff: Hon. Mike Mbuvi Sonko; Defendant: Governor Evans Odhiambo Kidero; Defendant: The Star Newspaper
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 257 of 2019
- Procedural Posture
- Civil Case / Ruling on Motion to Dismiss for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution with costs to the 2nd defendant.
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Prejudice to Defendant, Defamation Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Mike Mbuvi Sonko
Plaintiff
Governor Evans Odhiambo Kidero
Defendant
The Star Newspaper
Defendant
Procedural Posture
Civil Case / Ruling on Motion to Dismiss 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 continued pendency of the suit prejudices the 2nd defendant.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit for over two years and six months since the last action, and that this inordinate delay was unexplained and uncontroverted. The court inferred that the plaintiff had lost interest in the matter. The 2nd defendant demonstrated prejudice due to the unavailability of its key witness, who had left its employment. In these circumstances, the court held that the 2nd defendant was justified in seeking dismissal for want of prosecution. The motion was found meritorious and allowed, with costs to the 2nd defendant.
Court Disposition
Suit dismissed for want of prosecution with costs to the 2nd defendant.
Orders
- The motion dated 31.1.2018 is allowed.
- The suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 257 OF 2015
HON. MIKE MBUVI SONKO..................................................PLAINTIFF
VERSUS
GOVERNOR EVANS ODHIAMBO KIDERO............1ST DEFENDANT
THE STAR NEWSPAPER............................................2ND DEFENDANT
RULING
1) The subject matter of this ruling is the motion dated 31. 1.2018 taken out by The Star Newspaper, the 2nd defendant herein, in which it sought to inter alia have this suit dismissed for want of prosecution.
2) The motion is supported by the affidavit of Aisha Namwoli, the 2nd defendant’s advocate.
3) The aforesaid motion was served upon the firms of Mungatana & Co. Advocates and that of Prof. Tom Ojienda & Associates which firms represented Hon. Mike Mbuvi Sonko and Governor Evans Odhiambo Kidero the plaintiff and 1st defendant respectively. The aforementioned parties did not deem it fit to file a response to the motion, therefore the 2nd defendant was granted leave to prosecute the application exparte. The 2nd defendant was granted leave to file written submissions.
4) I have considered the grounds stated on the face of the motion and the facts deponed in the supporting affidavits plus the written submissions. It is the submission of the 2nd defendant that the plaintiff has not taken any steps to have the suit prosecuted for over one year and 10 months hence it should be struck out. The defendant went ahead to argue that the plaintiff appears to have lost interest in pursuing this action.
5) The 2nd defendant further stated that it is prejudiced by the continued pendency of this suit because its key witness has left its employment. The 2nd defendant’s averments have not been controverted by the respondents.
6) This suit is founded on the tort of defamation which was filed on 28. 7.2015. The 2nd defendant filed its statement of defence on 24. 9.2015. It is apparent from the record that since 24th March 2016 to date, the plaintiff has not taken any step to fix this suit for hearing.
7) It is now more than 2 years 6 months since then. In the circumstances, this court can infer that the plaintiff has lost interest to pursue this matter.
8) With respect, I agree with the defendant that the delay to prosecute this suit will greatly prejudice the 2nd defendant in that by the time the suit comes up for hearing, it will have no witnesses to testify in support of its defence.
9) In the circumstances of this case, the 2nd defendant was perfectly right to seek for the dismissal of this suit for want of prosecution.
10) In the end, the motion dated 31. 1.2018 is found to be meritorious. It is allowed as prayed with costs being given to the 2nd defendant.
Dated, Signed and Delivered in open court this 2nd day of November, 2018.
J. K. SERGON
JUDGE
In the presence of:
............................................for the Plaintiff
............................................for the Defendants