[2008] KEHC 1079 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit since the ex-parte injunction was vacated in December 1999, nor had it opposed the defendant's application for dismissal. This inaction was deemed a clear manifestation of lack of interest in the suit. Accordingly, the court exercised...
Source-derived case information.
- Citation
- [2008] KEHC 1079 (KLR)
- Parties
- Plaintiff: Naivaco Company Ltd; Defendant: Housing Finance Co. of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 153 of 1999
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- DK Maraga
- Legal Topics
- Dismissal for Want of Prosecution, Injunctions, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naivaco Company Ltd
Plaintiff
Housing Finance Co. of Kenya Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the plaintiff has demonstrated interest in prosecuting the suit.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit since the ex-parte injunction was vacated in December 1999, nor had it opposed the defendant's application for dismissal. This inaction was deemed a clear manifestation of lack of interest in the suit. Accordingly, the court exercised its discretion under Order 16 Rule 5(a) of the Civil Procedure Rules to dismiss the suit for want of prosecution and awarded costs to the defendant.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- The defendant shall have the costs of both the application and the suit.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU Civil Case 153 of 1999
NAIVACO COMPANY LTD………..…..………….PLAINTIFF
VERSUS
HOUSING FINANCE CO. OF KENYA LTD….DEFENDANT
RULING
NAIVACO COMPANY LIMITED filed this suit on 8th April 1999 complaining that though the defendant, which had advanced some funds to it, was not furnishing it with the statements of the account, it had threatened to realize the security - Title Number Naivasha/Maraigushu Block 1/1068 - which secures the advance. It therefore sought an injunction to restrain the defendant from realizing that security until the defendant supplied it with the statements of account.
Along with the suit, the plaintiff filed an application for injunction and obtained an ex-parte injunction restraining the defendant from auctioning its said property. On the defendant’s application that injunction was vacated on 8th December 1999. Since then the plaintiff has not taken any step to have the case heard.
By its application dated 15th January 2008 and brought under Order 16 Rule 5(a) of the Civil Procedure Rules, the defendant seeks the dismissal of this suit for want of prosecution. Though served with the application the plaintiff has not been moved. It has not even belatedly attempted to fix the case for hearing or even oppose this application. That is clear manifestation that the defendant has no further interest in this suit. In the circumstances I accede to the defendant’s plea and hereby dismiss this suit for want of prosecution. The defendant shall have the costs of both this application and those of the suit.
DATED and delivered at Nakuru this 16th day of October, 2008
D. K. MARAGA
JUDGE