[2008] KEHC 3067 (KLR)
The court found that the plaintiffs failed to provide a satisfactory explanation for the inordinate delay of over 8 years in prosecuting the suit, and a further delay of over 3 years before seeking to set aside the dismissal. The explanation of lack of funds was deemed insufficient, especially since the suit was...
Source-derived case information.
- Citation
- [2008] KEHC 3067 (KLR)
- Parties
- Plaintiff: Njeru Kirie; Plaintiff: Kiringa Njiru; Plaintiff: Giciebu Giceko; Plaintiff: Ngari Kabingu; Defendant: Lawrence Muriuki; Defendant: Joseph Mwai Muchoki; Defendant: Ambrosius Nyaga Ruri; Defendant: Ndwiga Mukundi; Defendant: Njiru Mutua
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 25 of 1996
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Inordinate Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Njeru Kirie
Plaintiff
Kiringa Njiru
Plaintiff
Giciebu Giceko
Plaintiff
Ngari Kabingu
Plaintiff
Lawrence Muriuki
Defendant
Joseph Mwai Muchoki
Defendant
Ambrosius Nyaga Ruri
Defendant
Ndwiga Mukundi
Defendant
Njiru Mutua
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiffs have provided sufficient explanation for the delay in prosecuting the suit.
- 2 Whether the dismissal for want of prosecution should be set aside and the suit reinstated.
Ratio Decidendi
The court found that the plaintiffs failed to provide a satisfactory explanation for the inordinate delay of over 8 years in prosecuting the suit, and a further delay of over 3 years before seeking to set aside the dismissal. The explanation of lack of funds was deemed insufficient, especially since the suit was already filed and pending in court. The court held that such unexplained and prolonged delay is prejudicial and does not warrant the exercise of discretion to set aside the dismissal. Accordingly, the application to reinstate the suit was dismissed with costs to the respondents.
Court Disposition
application dismissed
Orders
- The application to set aside the dismissal and reinstate the suit is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Ciivil Case 25 of 1996
NJERU KIRIE …………………………………………….1ST PLAINTIFF
KIRINGA NJIRU……………………………..……………2ND PLAINTIFF
GICIEBU GICEKO…………………………..……………3RD PLAINTIFF
NGARI KABINGU…………………………….....…………4TH PLAINTIFF
VERSUS
LAWRENCE MURIUKI………………………...……….1ST DEFENDANT
JOSEPH MWAI MUCHOKI…………………………….2ND DEFENDANT
AMBROSIUS NYAGA RURI………………….….……..3RD DEFENDANT
NDWIGA MUKUNDI……………………….…….………4TH DEFENDANT
NJIRU MUTUA…………………………………..……….5TH DEFENDANT
RULING
This suit was filed on 15/3/1996 by way of Originating Summons. On 4/6/2004 the suit was dismissed for want of prosecution over a period of 8 years.
Then on 5/10/2007 the plaintiff filed an application to set aside the dismissal and reinstate the suit. The supporting affidavit states that the plaintiffs did not have funds to prosecute the suit but they are willing to take action if the dismissal was to be set aside. The application is opposed in addition to the delay of 8 years the applicants took a further period of over 3 years before filing this application. The explanation given for failure to take action in prosecuting the suit is not satisfactory. The suit was already in court for what funds were required?
I find there is inordinate delay in this case which is not explained. The application is dismissed with costs to Respondents
Dated this 28th January, 2008.
J. N. KHAMINWA
JUDGE