[2018] KEHC 10199 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit since the dismissal of the interlocutory application in September 2016. The 1st defendant's letter inquiring about prosecution was ignored by the plaintiff's advocate. The delay was deemed inordinate and inexcusable, and allowing...
Source-derived case information.
- Citation
- [2018] KEHC 10199 (KLR)
- Parties
- Plaintiff: Patrick Kimani Kamau T/A MKOPA Investments; Defendant: Safaricom Ltd; Defendant: MKOPA Kenya Limited; Defendant: Mobile Ventures Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 560 of 2015
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to all defendants
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kimani Kamau T/A MKOPA Investments
Plaintiff
Safaricom Ltd
Defendant
MKOPA Kenya Limited
Defendant
Mobile Ventures Kenya 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 due to inordinate and inexcusable delay by the plaintiff.
- 2 Whether the defendants are entitled to costs of the suit and the application.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit since the dismissal of the interlocutory application in September 2016. The 1st defendant's letter inquiring about prosecution was ignored by the plaintiff's advocate. The delay was deemed inordinate and inexcusable, and allowing the suit to remain would risk the fairness of the trial. There was no justification provided by the plaintiff for the delay. Accordingly, the court exercised its discretion under Order 17 Rule 2(3) of the Civil Procedure Rules to dismiss the suit for want of prosecution and awarded costs to all defendants, including costs of the application to the 1st defendant.
Court Disposition
suit dismissed for want of prosecution with costs to all defendants
Orders
- The suit is dismissed for want of prosecution.
- Costs of the suit are awarded to all defendants.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL CASE NO. 560 OF 2015
PATRICK KIMANI KAMAU
T/A MKOPA INVESTMENTS............................................PLAINTIFF
-VERSUS-
SAFARICOM LTD....................................................1ST DEFENDANT
MKOPA KENYA LIMITED...................................2ND DEFENDANT
MOBILE VENTURES KENYA LIMITED...........3RD DEFENDANT
RULING
1. The plaintiff filed its plaint and simulteneously filed an interlocutory application on 26th August 2015. This court by its ruling of 21st September 2016, dismissed the interlocutory application.
2. The plaintiff from the date of that ruling has failed to proceed with this case. The 1st defendant by notice of motion dated 6th April 2018 seeks dismissal of this suit for want of prosecution. It is brought under Order 17 Rule 2 (3) of the Civil Procedure Rules.
3. The 1st defendant is on record having written to the plaintiff’s learned advocate on 14th March 2017 inquiring whether the plaintiff was desirous of prosecuting this suit. That letter did not receive a response from the plaintiff’s advocate.
4. I agree with the 1st defendants submission that the delay in prosecuting this suit is inordinate and inexcusable. If it is allowed to continue, there is a risk that fair trial of the issues before court will not be possible. The plaintiff’s failure to proceed with this case is unacceptable. There is nothing presented before court which can dissuade me from granting the 1st defendant’s application.
5. In the end this case is dismissed for want of prosecution with costs being granted to all the defendants. The 1st defendant is awarded costs of the notice of motion dated 6th April 2018.
DATED, SIGNED and DELIVERED at NAIROBI this 30th day of October, 2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant....................Sophie
........................................... for the Applicant
............................................for the Respondent
MARY KASANGO
JUDGE