[2018] KEHC 1423 (KLR)
The court found that the plaintiffs had not taken any steps to prosecute the suit since 13th March 2017, a period exceeding one year. The plaintiffs' advocate was served with a hearing notice for the application but failed to attend court or oppose the application. The court concluded that the plaintiffs had lost...
Source-derived case information.
- Citation
- [2018] KEHC 1423 (KLR)
- Parties
- Plaintiff: Norris Kibe; Plaintiff: Gibson Wachaga; Plaintiff: Barbel Investments Limited; Defendant: Exxim Enterprises Limited; Defendant: Kenya Tea Development Agency Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 24 of 2014
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Norris Kibe
Plaintiff
Gibson Wachaga
Plaintiff
Barbel Investments Limited
Plaintiff
Exxim Enterprises Limited
Defendant
Kenya Tea Development Agency Limited
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 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the plaintiffs had not taken any steps to prosecute the suit since 13th March 2017, a period exceeding one year. The plaintiffs' advocate was served with a hearing notice for the application but failed to attend court or oppose the application. The court concluded that the plaintiffs had lost interest in the matter and that the requirements of Order 17 Rule 2 of the Civil Procedure Rules had been satisfied. Accordingly, the suit was dismissed for want of prosecution, and costs were awarded to the 2nd defendant.
Court Disposition
suit dismissed for want of prosecution
Orders
- The plaintiffs' suit is dismissed for want of prosecution.
- The costs of the suit and of the Notice of Motion dated 28th August, 2018 are awarded to the 2nd Defendant and shall be paid by the plaintiffs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
CIVIL CASE NO.24 OF 2014
NORRIS KIBE..........................................................................1ST PLAINTIFF
GIBSON WACHAGA………………………….............…….2ND PLAINTIFF
BARBEL INVESTMENTS LIMITED…………………….....3RD PLAINTIFF
-VERSUS-
EXXIM ENTERPRISES LIMITED.....................................1ST DEFENDANT
KENYA TEA DEVELOPMENT AGENCY LIMITED….2ND DEFENDANT
RULING
1. The three plaintiffs filed this claim on 22nd January 2014. The 1st defendant filed its defence on 13th February, 2014, while the 2nd defendant filed its defence on 12th February 2014. By end of February 2014 pleadings, in this matter, had closed.
2. By this court’s Ruling delivered on 11th November 2014 the court declined to enter judgment against the 2nd defendant as sought by the plaintiff’s application dated 17th May 2014.
3. The matter was thereafter fixed for case management conference (CMC) and was lastly in court on 13th March 2017 when the plaintiff’s learned counsel informed the court that the plaintiff had not complied with CMC. No further dates were fixed by the plaintiff.
4. The 2nd defendant by Notice of Motion dated 28th August 2018 seeks dismissal of this suit for want of prosecution. The application is brought under Order 17 Rule 2 (1) and (3) of the Civil Procedure Rules.
5. The application is based on the ground that the plaintiff has failed to take steps to set the suit for hearing since 13th March 2017.
6. Although the plaintiff’s advocate was served with a hearing notice for 3rd December 2018, the plaintiff’s advocate did not attend court and the application was therefore unopposed.
7. One can only therefore surmise that the plaintiff has lost interest in this matter which has remained unattended from March 2017. That period of non activity is more than a year, thereby satisfying Order 17 of the Civil Procedure Rules.
8. Accordingly, the plaintiff’s suit is hereby dismissed for want of prosecution. The costs of the suit and of the Notice of Motion dated 28th August, 2018 are awarded to the 2nd Defendant and shall be paid by the plaintiff.
DATED, SIGNED and DELIVERED at NAIROBI this6thday of December,2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant....................Sophie
............................................ for the Plaintiffs
............................................ for the Defendants
MARY KASANGO
JUDGE