[2025] KEHC 4117 (KLR)
The court found that the plaintiff had failed to take any positive steps to prosecute the claim for nine years, with most adjournments being inexcusable and no explanation provided for the delay. Applying the principles from Birket v James, the court determined that the delay was inordinate and inexcusable, and that...
Source-derived case information.
- Citation
- [2025] KEHC 4117 (KLR)
- Parties
- Plaintiff: Moi Teaching & Refferal Hospital; Defendant: Alexander Forbes Healthcare Limited
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 13 of 2016
- Procedural Posture
- Civil Suit / Ruling on Adjournment and Warning for Want of Prosecution
- Outcome
- Final adjournment granted; suit to be prosecuted on 4th April, 2025 or risk dismissal for want of prosecution.
- Judges
- RN Nyakundi
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Adjournment Practice, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moi Teaching & Refferal Hospital
Plaintiff
Alexander Forbes Healthcare Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Adjournment and Warning for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's inordinate and inexcusable delay in prosecuting the suit warrants dismissal for want of prosecution.
- 2 Whether the plaintiff should be granted a final opportunity to prosecute the case before dismissal.
Ratio Decidendi
The court found that the plaintiff had failed to take any positive steps to prosecute the claim for nine years, with most adjournments being inexcusable and no explanation provided for the delay. Applying the principles from Birket v James, the court determined that the delay was inordinate and inexcusable, and that such conduct risks prejudice to the defendant and undermines the fair administration of justice. As a result, the court issued a final warning to the plaintiff, granting one last opportunity to prosecute the suit on the scheduled hearing date, with a clear indication that no further adjournments would be granted for the same reasons and that failure to proceed would result in...
Court Disposition
Final adjournment granted; suit to be prosecuted on 4th April, 2025 or risk dismissal for want of prosecution.
Orders
- Plaintiff to prosecute the suit on 4th April, 2025; no further adjournments will be granted for the same reasons.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
Moi Teaching & Refferal Hospital v Alexander Forbes Healthcare Limited (Civil Suit 13 of 2016) [2025] KEHC 4117 (KLR) (2 April 2025) (Ruling)
Neutral citation: [2025] KEHC 4117 (KLR)
Republic of Kenya
In the High Court at Eldoret
Civil Suit 13 of 2016
RN Nyakundi, J
April 2, 2025
Between
Moi Teaching & Refferal Hospital
Plaintiff
and
Alexander Forbes Healthcare Limited
Defendant
Ruling
1. From the record the Plaintiff filed his claim on 31st August, 2016 seeking the following reliefs:a.An order of specific performance compelling the defendant to perform its contractual obligation under the said contract by regularizing the overdue account of Kshs. 20,176,662/=b.Costs of the suitc.Interest.
2. Unfortunately, nine (9) years down the line since the claim was filed, no positive steps have been taken to prosecute the claim against the defendant. The record is very clear that the Plaintiff has been indolent to adduce evidence in support of the claim and most of the adjournments are inexcusable. As a consequence of it, the exercise of the court’s power to dismiss this cause of action for want of prosecution in line with the principles outlined in Birket v James (1977) 2 ALL E.R. 801 is imminent unless the Plaintiff takes advantage of the last adjournment granted for the hearing scheduled on the 4th April, 2025. In the cited case above, Lord Diplock observed:“That where the court is satisfied that the default to prosecute the case has been intentional and contumelious e.g. disobedience to a peremptory order of the court or conduct amounting to abuse of the process of the court or that there has been inordinate and inexcusable delay on the part of the Plaintiff or its lawyers and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in action or is such as is likely to cause or to have caused serious prejudice to the defendant either as between themselves and the Plaintiff or between each other or between them and a third party.”
3. The Plaintiffs in this case have not given any explanation why the suit should be pending for such an extensive period of time. Therefore, I find that there is inordinate inexcusable delay since the proceedings were initiated against the defendant. I therefore put the Plaintiff on notice that failure to prosecute the suit on 4th April, 2025, there will be no further adjournment on the same reasons so advanced previously for not taking steps to present evidence before this court. This opportunity to present their case on 4th April, 2025 be and is hereby been marked as the last adjournment with no orders as to costs.Given under my hand and seal of this Honorable court on this 1st day of April, 2025
DATED AND DELIVERED VIA CTS AT ELDORET, THIS 2ND DAY OF APRIL 2025…………………………R. NYAKUNDIJUDGE