[2007] KEHC 3087 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit since the ruling of 11th February 2004, and no explanation was provided for the delay. The defendant properly invoked Order 16 Rule 5(a) of the Civil Procedure Rules, which entitles a defendant to apply for dismissal where the plaintiff...
Source-derived case information.
- Citation
- [2007] KEHC 3087 (KLR)
- Parties
- Plaintiff: Obadia Kipruto Kirui; Defendant: Peter Kipkemboi Rono
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 10 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Judges
- K Bauni
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Land Registration Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Obadia Kipruto Kirui
Plaintiff
Peter Kipkemboi Rono
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution due to inordinate and unexplained delay.
- 2 Whether the defendant properly invoked Order 16 Rule 5(a) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit since the ruling of 11th February 2004, and no explanation was provided for the delay. The defendant properly invoked Order 16 Rule 5(a) of the Civil Procedure Rules, which entitles a defendant to apply for dismissal where the plaintiff fails to set the suit down for hearing within three months after the close of proceedings. The court held that the delay was inordinate and unexplained, and there was nothing to mitigate it. The absence of any response or explanation from the plaintiff further justified dismissal. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution with...
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The plaintiff's suit is dismissed for want of prosecution.
- The plaintiff shall pay the costs of the suit to the defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Case 10 of 2004
OBADIA KIPRUTO KIRUI:.............................PLAINTIFF
VERSUS
PETER KIPKEMBOI RONO:.....................DEFENDANT
RULING
The applicant PETER KIPKEMBOI RONO, who is the defendant in this suit seeks court to dismiss the Plaintiff’s/Respondents suit for want of prosecution. the plaintiff/Respondent was served but he did not appear today. Also, though served with the application he did not file a replying affidavit or grounds of opposition.
The Respondent filed this suit vide a plaint on 21st January,2004 seeking the registration of the applicant as the proprietor of land parcel No. NANDI/CHEPTERIT/856 to be cancelled and he be confirmed as the sole proprietor of the said land. He also, at the same time filed an application seeking for an order of injunction. Ruling was delivered on 11th February,2004. the applicant has deponed that since the delivery of the ruling on 11th February,2004 the respondent has not taken any steps to prosecute the suit. It was submitted that the delay is inordinate and inexcusable.
I have considered the application. It is clear that the respondent has not taken any steps to prosecute the suit since 11th February,2004 when his application was dismissed. Order 16 Rule 5(a) CPR under which the application is brought provides:-
“If within three months after
(a) the close of proceedings
(b).......................................
(C)........................................
(d) The defendant of the suit generally, the plaintiff or the court on its own motion on notice to the parties, does not set down the suit for hearing, the defendant may either set the suit down for hearing or apply for its dismissal”.
As the plaintiff took no action since February,2004 the defendant had the option of setting the suit down for hearing or apply for its dismissal. He chose the later. The respondent has not explained why he has not taken any action since February,2004. I do note that after the ruling of 11th February,2004 his counsel sought for leave to appeal and leave was granted. A Notice of appeal was filed on 16th February,2004. It is however not clear if the appeal was filed and if so what is the position. If the appeal was filed the respondent, who was served with this application would no doubt have explained that to court. As it were he did not file any papers or reply to explain why he has not taken any steps. I find the delay to be inordinate and there is nothing to mitigate for it. It is unexplained in any way. this therefore is a fit case for dismissal for want of prosecution. In the circumstances the application is allowed. The plaintiffs case is dismissed with costs.
DATED AND DELIVERED AT ELDORET ON 18th APRIL,2007.
KABURU BAUNI
JUDGE