[2007] KEHC 1757 (KLR)
The court found that the plaintiff had lost interest in prosecuting the case, as no action had been taken for more than three years since the last step in 1997. The court held that it would be unconscionable to allow the suit to hang over the defendants indefinitely. Accordingly, the suit was dismissed with costs...
Source-derived case information.
- Citation
- [2007] KEHC 1757 (KLR)
- Parties
- Plaintiff: Nationi Mayika Lumbasi; Defendant: Indeche Mukundu; Defendant: Japheth Mulupi Keti
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 183 of 1991
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendants
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nationi Mayika Lumbasi
Plaintiff
Indeche Mukundu
Defendant
Japheth Mulupi Keti
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 due to inaction by the plaintiff.
- 2 Whether the defendants are entitled to costs upon dismissal of the suit.
Ratio Decidendi
The court found that the plaintiff had lost interest in prosecuting the case, as no action had been taken for more than three years since the last step in 1997. The court held that it would be unconscionable to allow the suit to hang over the defendants indefinitely. Accordingly, the suit was dismissed with costs for want of prosecution.
Court Disposition
suit dismissed for want of prosecution with costs to the defendants
Orders
- The suit is dismissed for want of prosecution.
- The plaintiff shall pay the costs of the suit to the defendants.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Case 183 of 1991
NATIONI MAYIKA LUMBASI :::::::::::::::::::::::: PLAINTIFF/RESPONDENT
VERSUS
1. INDECHE MUKUNDU
2. JAPHETH MULUPI KETI::::::::::::::::::::::: DEFENDANTS/APPLICANTS
RULING
The Defendants, Indeche Mukundu and Japheth Mulupi Keti, made an application on 25. 10. 2005 by Notice of Motion dated 21. 10. 2005 seeking dismissal with costs of the suit herein under Order XLI Rule 5 of the Civil Procedure Rules on the grounds that the Plaintiff had not taken any steps to prosecute the suit since 26/6/1997 when he obtained inhibition orders and that all dates taken in the suit had been taken by the second Defendant. This was reiterated in the affidavit sworn by the Defendants’ advocates, Mr. Calvin Onyari Samba, sworn on 21. 10. 2005 in support of the application.
The Plaintiff’s advocate, Mr. Dan Omukunda, swore on 2. 3.2006 the replying affidavit in opposition to the application. He averred that he had been informed that the 1st Defendant had died in 2004 and that he believed that to be true. In paragraph 6 of the said affidavit, he averred that:
6. “if this claim lapses or is dismissed, the
applicant should not be entitled to
costs from the Plaintiff/Respondent.”
Mr. Samba who acts for the Defendants does not say his clients or any of them has died. Indeed if they had, he would not have further instructions to act in the matter. It seems patently clear that the Plaintiff has lost interest in the suit but he has fear that he might be condemned to pay costs. It is unconscionable to allow the suit to hang over the head of the Defendants indefinitely. No action has been taken to prosecute it for more than 3 years.
It is my finding that the Plaintiff has lost interest in prosecuting the case and for this reason I hereby dismiss the suit with costs for want of prosecution.
Delivered, dated and signed at Kakamega this 8th day of November, 2007.
G. B. M. KARIUKI
J U D G E