[2016] KEHC 6307 (KLR)
The court found that although the application for dismissal was filed before the lapse of one year since the last step in the proceedings, the requisite period had since lapsed by the time of the ruling. The Plaintiff/Respondent failed to provide any explanation for the delay or to oppose the application. The court...
Source-derived case information.
- Citation
- [2016] KEHC 6307 (KLR)
- Parties
- Plaintiff: Network Industry and Services (NETIS) Cote D’Ivoire Limited; Defendant: Adblu East Africa Limited; Defendant: Gavin William Geraghty; Defendant: David Gavin Geraghty
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 401 of 2013
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- OA Sewe
- Legal Topics
- Dismissal for Want of Prosecution, Judicial Discretion, Delay in Prosecution, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Network Industry and Services (NETIS) Cote D’Ivoire Limited
Plaintiff
Adblu East Africa Limited
Defendant
Gavin William Geraghty
Defendant
David Gavin Geraghty
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 under Order 17 Rule 2(3) of the Civil Procedure Rules.
- 2 Whether the delay in prosecuting the suit is excusable in the interests of justice.
- 3 Whether the Plaintiff/Respondent has provided any explanation for the delay.
Ratio Decidendi
The court found that although the application for dismissal was filed before the lapse of one year since the last step in the proceedings, the requisite period had since lapsed by the time of the ruling. The Plaintiff/Respondent failed to provide any explanation for the delay or to oppose the application. The court exercised its discretion in favour of the Defendant/Applicant, holding that the Plaintiff/Respondent had lost interest in the suit. Consequently, the suit was dismissed for want of prosecution, and costs were awarded to the Defendant/Applicant.
Court Disposition
suit dismissed for want of prosecution
Orders
- The Plaintiff/Respondent’s suit against the Defendant/Applicant is dismissed for want of prosecution.
- All the Plaintiff/Respondent’s claims as against the Defendant/Applicant are dismissed forthwith.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO 401 OF 2013
NETWORK INDUSTRY AND SERVICES
(NETIS) COTE D’IVOIRE LIMITED…...........................PLAINTIFF
VERSUS
ADBLU EAST AFRICA LIMITED........................1ST DEFENDANT
GAVIN WILLIAM GERAGHTY……..........…….2ND DEFENDANT
DAIVD GAVIN GERAGHTY…………….........…3RDDEFENDANT
RULING
1. The Notice of Motion dated 16th December, 2015 was filed pursuant to Section 3A of the Civil Procedure Act and Order 17 Rule 2 (3) of the Civil Procedure Rules, 2010 for orders that:
1) The Plaintiff/Respondent’s suit against the Defendant/Applicant be dismissed for want of prosecution.
2) That all the Plaintiff/Respondent’s claims as against the Defendant/Applicant be forthwith dismissed.
3) That the costs of the application be borne by the Plaintiff/Respondent
2. The application is founded on the contention by the Defendant/Applicant that it is more than nine months since the Plaintiff/Respondent made any application or took any steps towards the prosecution of this suit, and that this is an indication that the Plaintiff/Respondent is no longer interested in prosecuting this suit. The application is supported by the affidavit sworn by DOREEN MUTUNGA annexed thereto.
3. A perusal of the Court record shows that this matter, which was filed in September, 2013 was last before the Court on 23rd February, 2015 when a Ruling was delivered in respect of the Plaintiff’s Preliminary Objection dated 1st January, 2014. Since then, the Plaintiff has not taken any steps towards progressing this case towards its hearing and final disposal. Order 17 Rule 2 (1) as read with sub-rule (3) of the Civil Procedure Rules recognizes that any party may apply for the dismissal of a suit in which:
“…no application has been made or step taken by either party for one year…”
4. Clearly therefore, it was not yet one year from the date of the Court’s Ruling by the time the instant application was filed on 16th December, 2015. It is noted, nevertheless, that the period of one year has since lapsed, and whereas the Court has discretion to excuse such delay if the interests of justice would be thereby served, it is trite that such discretion can only be exercised judiciously and upon reasonable grounds. In the case of Jimmy Wafula Simiyu Vs Fidelity Bank [2014]eKLR the Court observed thus:
“…the Court has discretion to excuse a delay as long as it has been explained to the satisfaction of the Court. The satisfaction will come from the explanation given and the fact that the delay causes no substantial prejudice to fair trial or one of the parties or the other or both.”
5. In this case the application was served but has not been resisted by the Plaintiff/Respondent. Accordingly, no explanation has been proffered for the delay. Accordingly, I find merit in the Defendant/Applicant’s contention that the Plaintiff/Respondent has lost interest in this case. Thus, the Notice of Motion dated 16th December, 2015 is hereby allowed and orders granted as prayed per prayers (1), (2) and (3) thereof.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF FEBRUARY 2016
OLGA SEWE
JUDGE