[2012] KEHC 584 (KLR)
The court found that no action had been taken by the plaintiff or his advocate since the defence was filed on 19th June 2009. The application for dismissal for want of prosecution was served on the plaintiff's advocates, who did not file any response or attend the hearing. The court held that, in the absence of any...
Source-derived case information.
- Citation
- [2012] KEHC 584 (KLR)
- Parties
- Plaintiff: Patrick Muthengi Maluki; Defendant: Peter K. Watuta
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 95 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application allowed. Suit dismissed for want of prosecution. Plaintiff's advocate to personally pay costs.
- Judges
- GMA Dulu
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Muthengi Maluki
Plaintiff
Peter K. Watuta
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.
- 2 Whether the plaintiff's advocate should personally bear the costs of the application.
Ratio Decidendi
The court found that no action had been taken by the plaintiff or his advocate since the defence was filed on 19th June 2009. The application for dismissal for want of prosecution was served on the plaintiff's advocates, who did not file any response or attend the hearing. The court held that, in the absence of any opposition and given the prolonged inactivity, the suit must be dismissed for want of prosecution. Furthermore, the court determined that the plaintiff's advocate, who remained on record and failed to act, should personally bear the costs of the application. The decision was grounded in the mandatory provisions of Order 17 Rule 2 of the Civil Procedure Rules, which empower the...
Court Disposition
Application allowed. Suit dismissed for want of prosecution. Plaintiff's advocate to personally pay costs.
Orders
- The suit is dismissed for want of prosecution.
- The plaintiff’s advocate, Lawrence Mwangi, will personally pay the costs of the defendant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Machakos
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PATRICK MUTHENGI MALUKI............................................................PLAINTIFF/RESPONDENT
VERSUS
PETER K. WATUTA..............................................................................DEFENDANT/APPLICANT
R U L I N G
This is a Notice of Motion dated 25 May 2012 filed by the defendant Peter K. Watuta. It is an application requesting that the suit herein, filed in 2009 be dismissed for want of prosecution. The application was filed under Order 17 Rule 2 (1) (3) and Order 51 rule 1 of the Civil Procedure Rules 2010.
Though the application which had a hearing date for 18th July 2012 was served on M/s Lawrence Mwangi & Company Advocates for the plaintiff on 28/6/2012, they marked their receipt of the application to be under protest without indicating the reason for the protest. They also did not attend court, nor did they file a response to the application. At the back of the hearing notice the said advocates for the plaintiff endorsed that the service be effected on the plaintiff, while they had not actually not withdrawn from acting for the plaintiff.
Unfortunately, as the application is not opposed, the plaintiff will have to lose this case. No action has been taken by the plaintiff or his advocate, since defence was filed on 19th June 2009. I will therefore dismiss the suit for want of prosecution. However, the advocate Lawrence Mwangi, who filed the plaint and is still on record, will pay the costs.
Consequently, I allow the application. The suit is hereby dismissed for want of prosecution. The plaintiff’s advocate Lawrence Mwangi will personally pay the costs of the defendant.
Dated and delivered this 16thday of November,2012.
George Dulu
Judge
In the presence of:
Mr J Makau holding brief for Mwalimu for the Defendant
Mutinda – Court clerk.