[2008] KEHC 1871 (KLR)
The court found that although the application to dismiss the suit for want of prosecution was properly brought under the relevant provisions of the Civil Procedure Rules, the grounds in support were insufficient and lacked the necessary specificity, particularly regarding the relevant dates. The Applicant's counsel...
Source-derived case information.
- Citation
- [2008] KEHC 1871 (KLR)
- Parties
- Plaintiff: Nyangiry Bwonditi & Another; Defendant: James Masila Mutua & Other; Defendant: Alex Anambo t/a Nambo & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 776 of 2006
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Dismiss for Want of Prosecution
- Outcome
- application dismissed with costs to the plaintiffs/respondents
- Legal Topics
- Dismissal for Want of Prosecution, Order Xvi Rule 5a, Notice of Motion, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyangiry Bwonditi & Another
Plaintiff
James Masila Mutua & Other
Defendant
Alex Anambo t/a Nambo & Co. Advocates
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order XVI Rule 5(a) of the Civil Procedure Rules.
- 2 Whether the application was properly prosecuted and supported by sufficient grounds.
Ratio Decidendi
The court found that although the application to dismiss the suit for want of prosecution was properly brought under the relevant provisions of the Civil Procedure Rules, the grounds in support were insufficient and lacked the necessary specificity, particularly regarding the relevant dates. The Applicant's counsel failed to substantiate the application with concrete facts, and the Respondent was able to easily counter the arguments. As a result, the court determined that the application did not meet the threshold required for dismissal under Order XVI Rule 5(a), and therefore dismissed the Notice of Motion with costs to the Plaintiffs/Respondents.
Court Disposition
application dismissed with costs to the plaintiffs/respondents
Orders
- The Notice of Motion dated 26th May, 2008 is dismissed.
- Costs awarded to the Plaintiffs/Respondents.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 776 of 2006
NYANGIRY BWONDITI& ANOTHER .................... 1ST PLAINTIFF/RESPONENT
Vs
JAMES MASILA MUTUA.& OTHER ..................... 1ST DEFENDANT/APPLICANT
ALEX ANAMBO T/A NAMBO & CO. ADVOCATES................... ..2ND DEFEDNANT
RULING
This Notice of Motion dated 26th May, 2008 brought by the 1st Defendant seeking to have the Plaintiff’s suit dismissed for want of prosecution could have easily been allowed but the way it has been prosecuted forces me not to do so.
While the application is properly brought under Order XVI Rule 5 (a) and Order L Rule 1 of the Civil Procedure Rules, looking at the grounds in support of the application as stated on the face of the Notice of Motion and proceeding to look at the supporting affidavit, tells me that it is not correct to stay the application is under order XVI Rule 5(a).
That being so, where do we go? That explains why learned counsel for the Applicant kept on talking without mentioning a specific date and would only mention one if I insisted that he does so only for the learned counsel for the Respondent to easily dislodge him without reply even though the grounds of opposition were not grounds which could have stood the test under Order XVI Rule 5(a).
Accordingly the said Notice of Motion is hereby dismissed with costs to the Plaintiffs/Respondents.
Dated this 17th day of July, 2008.
J.M. KHAMONI
JUGDE