[2009] KEHC 434 (KLR)
The court found that the Plaintiff had failed to take any steps to prosecute the suit for a period of eight years since its filing in August 2001, despite having obtained interim orders and being properly served with the hearing date. The Plaintiff's advocates had applied to cease acting due to lack of instructions,...
Source-derived case information.
- Citation
- [2009] KEHC 434 (KLR)
- Parties
- Plaintiff: Moiz Hassan Nathoo T/A T & S Inter Trade; Defendant: Harveen Gadhoke; Defendant: Shamash & Brothers Limited; Defendant: The Hon. The Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 412 of 2001
- Procedural Posture
- Civil Suit / Ruling on Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- JV Juma
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moiz Hassan Nathoo T/A T & S Inter Trade
Plaintiff
Harveen Gadhoke
Defendant
Shamash & Brothers Limited
Defendant
The Hon. The Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on 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 proper service of the hearing date was effected on all parties.
Ratio Decidendi
The court found that the Plaintiff had failed to take any steps to prosecute the suit for a period of eight years since its filing in August 2001, despite having obtained interim orders and being properly served with the hearing date. The Plaintiff's advocates had applied to cease acting due to lack of instructions, further evidencing abandonment of the suit. The court held that this inordinate delay justified dismissal under Order 9B Rule 4 of the Civil Procedure Rules. The court emphasized that it is not the court's duty to compel a party to prosecute its own suit and that the Plaintiff's conduct amounted to abandonment. Consequently, the suit was dismissed in its entirety with costs to...
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed in its entirety with costs to the 1st Defendant.
Full Case Text
Judgment text and source record
20 paragraphs
MOIZ HASSAN NATHOO
T/A T & S INTER TRADE ………………………….…… PLAINTIFF
VERSUS
HARVEEN GADHOKE ………………..………..………. 1ST DEFENDANT
SHAMASH & BROTHERS LIMITED ..............……….. 2ND DEFENDANT
THE HON. THE ATTORNEY GENERAL ……..……… 3RD DEFENDANT
**************************
COURT RULING
This matter was listed for hearing on 7th October 2009. The company of Anjarwalla and Khanna Advocates who were on record for the 1st Defendants took this date on an ex-parte basis in the Courts Registry. On the hearing date Mr. Khanna Advocate was present in court and ready to proceed on behalf of his client the 1st Defendant. There was no appearance by the Plaintiff/Applicant and likewise no appearance by the 2nd Defendant or by the Hon. Attorney-General. I have perused the court file and I note that all these parties were properly served with the hearing date. Their absence is totally unexplained.
I further note from a perusal of the court file that this suit was first filed in court on 10th August 2001. Despite their having obtained interim orders under certificate of urgency the Plaintiff/Applicant has taken no steps at all to prosecute their suit. By a Notice of Motion dated 1st September 2008 and filed in court on 2nd September 2008 the firm of Taib and Taib Advocates who were on record for the Plaintiffs applied to cease from acting on the grounds that they had been unable to contact their client in order to receive instructions in the matter. This is clear evidence that the Plaintiff has abandoned their suit. The hearing date of 7th October 2009 was taken not by the Plaintiff but by the 1st Defendant. Despite having been properly served the Defendant still failed to appear in court to prosecute their suit. The suit belongs to the Plaintiff. This court will not force or plead with them to prosecute the same. From August 2001 no action has been taken to prosecute the suit. That is a period of 8 years todate. In my view this amounts to inordinate delay. In the circumstances I find that O. 9B r.4 is applicable and I hereby dismiss this suit in its entirety with costs to the 1st Defendant.
Dated and Delivered at Mombasa this 23rd day of October 2009.
M. ODERO
JUDGE
Read in open court in the presence of:
Mr. Koech holding brief for Mr. Khanna for 1st Defendant
No appearance by Plaintiff
No appearance by Attorney General
M. ODERO
JUDGE
23/10/2009