[2004] KEHC 1588 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit since 8th July, 2002, and that the explanation provided—that the directors were out of the country—was unsupported by affidavit evidence and lacked specificity regarding their absence or return. The court held that it would be unfair to...
Source-derived case information.
- Citation
- [2004] KEHC 1588 (KLR)
- Parties
- Plaintiff: Redhill Holdings Ltd; Defendant: Heritage A. I. I. Insurance Co Ltd; Defendant: Securicor Ltd; Defendant: Circuit Guards Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1757 of 1999
- 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, Court Discretion, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Redhill Holdings Ltd
Plaintiff
Heritage A. I. I. Insurance Co Ltd
Defendant
Securicor Ltd
Defendant
Circuit Guards Ltd
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 XVI Rule 5 (d).
- 2 Whether the plaintiff provided sufficient explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit since 8th July, 2002, and that the explanation provided—that the directors were out of the country—was unsupported by affidavit evidence and lacked specificity regarding their absence or return. The court held that it would be unfair to continue burdening the defendants with the suit in the absence of a satisfactory explanation for the delay. Consequently, the court exercised its discretion to dismiss the suit for want of prosecution under Order XVI Rule 5 (d) of the Civil Procedure Rules.
Court Disposition
suit dismissed for want of prosecution with costs to the defendants
Orders
- The suit is dismissed with costs under Order XVI Rule 5 (d) of the Civil Procedure Rules.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE REPUBLIC OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO 1757 OF 1999
REDHILL HOLDINGS LTD …………………….………… PLAINTIFF
VERSUS
HERITAGE A. I. I. INSURANCE CO LTD …….….. 1ST DEFENDANT
SECURICOR LTD …………………………..…..…… 2ND DEFENDANT
CIRCUIT GUARDS LTD …………...………….……. 3RD DEFENDANT
RULING
application filed by the 1st and 2nd Defendants dated 8th December, 2003. I have also listened to the oral submissions in support of the application. I have also seen the Grounds of Opposition filed by Murgor & Murgor Advocates for the Plaintiff and Miss Sande’s submissions in opposition to the defendant’s application aforesaid.
The reason given for failure to take further steps in the prosecution of this case is that the Directors of the Plaintiff are out of the country. This fact is not supported by any affidavit by the said directors. It is not disclosed when the directors left the country. It is also not disclosed when the said directors will be back in the country.
Under the circumstances, the 1st and 2nd defendants were perfectly entitled to apply for the dismissal of this suit under Order XVI Rule 5 (d). The Plaintiff has taken no action to prosecute this suit since 8th July, 2002. On this date it is recorded that “one witness of the 1st defendant was out of the country.”
This alone should not have made the Plaintiff fail to fix their case for hearing.
Given the circumstances of this case, I hold that it is unfair to burden the defendant with this suit particularly as there is no explanation as to when the Plaintiff’s directors will return to this country. I am not satisfied that this court’s discretion should be exercised in favour of the Plaintiff. The suit is accordingly dismissed with costs under Order XVI Rule 5 (d). It is so ordered.
F. AZANGALALA
JUDGE
28. 1.2004