[2008] KEHC 1140 (KLR)
The court found that the plaintiff failed to set down the suit for hearing for eight months after it was removed from the hearing list, and did not provide any explanation for the delay. The application for dismissal was unopposed, as the plaintiff neither filed a response nor appeared at the hearing. Applying Order...
Source-derived case information.
- Citation
- [2008] KEHC 1140 (KLR)
- Parties
- Plaintiff: Pan Africa Builders & Contractors Limited; Defendant: Nation Media Group Limited; Defendant: David Mugonyi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 115 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendants
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pan Africa Builders & Contractors Limited
Plaintiff
Nation Media Group Limited
Defendant
David Mugonyi
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 under Order 16, rule 5(c) of the Civil Procedure Rules.
- 2 Whether the delay of eight months in setting down the suit for hearing is inordinate and unexplained.
- 3 Whether the defendants are entitled to costs of the suit and the application.
Ratio Decidendi
The court found that the plaintiff failed to set down the suit for hearing for eight months after it was removed from the hearing list, and did not provide any explanation for the delay. The application for dismissal was unopposed, as the plaintiff neither filed a response nor appeared at the hearing. Applying Order 16, rule 5(c) of the Civil Procedure Rules, the court held that the defendants were entitled to have the suit dismissed for want of prosecution. The court further held that the defendants were entitled to costs of both the suit and the application.
Court Disposition
suit dismissed for want of prosecution with costs to the defendants
Orders
- The plaintiff's suit is dismissed with costs to the defendants for want of prosecution.
- The defendants are awarded costs of the application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 115 of 2003
PAN AFRICA BUILDERS &CONTRACTORS LIMITED …........………PLAINTIFF
V E R S U S
1. NATION MEDIA GROUP LIMITED
2. DAVID MUGONYI ……................................………………….……..DEFENDANTS
R U L I N G
The Plaintiff, despite due service, has not filed any papers in response to the Defendants’ application by notice of motion dated 25th June, 2008. Nor was there appearance for it at the hearing of the application on 6th October, 2008.
The application seeks, under Order 16, rule 5(c) of the Civil Procedure Rules(the Rules), dismissal of the Plaintiff’s suit for want of prosecution. Under that rule, if, within three months after the removal of the suit from the hearing list the plaintiff, or the court of 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.
I have read the supporting affidavit and perused the court record. I have also given due consideration to the submissions of the Defendants’ learned counsel. The suit was fixed for hearing for 30th and 31st July, 2007. But it was not confirmed for hearing; it is thus deemed, for purposes of this application, to have been removed from the hearing lists of 30th and 31st July, 2007. Since that time the Plaintiff has not fixed it for hearing. The present application was filed on 1st July, 2008. There was thus a delay of eight (8) months on the part of the Plaintiff.
The Plaintiff has not bothered to explain this delay. The application is infact unopposed in that the Plaintiff has not filed any papers in response to the application. In the circumstances I will allow the application. The Plaintiff’s suit is hereby dismissed with costs to the Defendants for want of prosecution. The Defendants are also awarded costs of this application. It is so ordered.
DATED AT NAIROBI THIS 5TH DAY OF NOVEMBER, 2008
H. P. G. WAWERU
J U D G E
DELIVERED THIS 7TH DAY OF NOVEMBER, 2008