[2009] KEHC 2174 (KLR)
The court found that the plaintiff had failed to prosecute the suit with due diligence, as there had been no substantive steps taken to set the matter down for hearing for over a year after the close of pleadings. The only activity on record was the hearing of interlocutory applications, none of which advanced the...
Source-derived case information.
- Citation
- [2009] KEHC 2174 (KLR)
- Parties
- Plaintiff: Rijman Company Ltd; Defendant: Agricultural Finance Corporation; Defendant: Legacy Auctioneering Services
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1710 of 2001
- 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.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Injunctive Relief, Case Management
- 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
Rijman Company Ltd
Plaintiff
Agricultural Finance Corporation
Defendant
Legacy Auctioneering Services
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's delay in prosecuting the suit warrants dismissal for want of prosecution.
- 2 Whether the continued pendency of the suit is an abuse of court process.
Ratio Decidendi
The court found that the plaintiff had failed to prosecute the suit with due diligence, as there had been no substantive steps taken to set the matter down for hearing for over a year after the close of pleadings. The only activity on record was the hearing of interlocutory applications, none of which advanced the suit towards final determination. Previous negotiations for settlement did not excuse the delay. The court held that the continued pendency of the suit served no useful purpose and only prejudiced the defendant by keeping the matter unresolved and clogging court records. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution and awarded costs...
Court Disposition
Suit dismissed for want of prosecution with costs to the defendant.
Orders
- The suit is dismissed for want of prosecution.
- Costs of the suit and the application are awarded to the defendant/applicant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 1710 of 2001
RIJMAN COMPANY LTD:………………………..……PLAIANTIFF
VERSUS
AGRICULTURAL FINANCE CORPORATION …….1ST DEFENDANT
LEGACY AUCTIONEERING SERVICES:............…2ND DEFENANT
RULING
The Plaintiff filed the plaint herein on 9th November 2001 claiming for an injunction restraining sale of some landed property and for general damages and costs. The Defendants filed their Defence on 9th January 2004. Between the filing of the suit and Defendants Defence the parties were in court on the hearing of an application for an injunction and for amendment of plaint.
The Defendant has brought this Application on the ground that it is over a year since pleadings closed and the Plaintiff has not set the suit down for hearing as he appears to have lost interest in the same. This delay is described as being inordinate, in excusable and an abuse of the court process.
The record does not indicate when the last move towards getting the suit heard was. All that has happened is the hearing of Applications whose nature has not been to dispose of the suit. The Application for dismissal made earlier in this case would have succeeded but for the fact of some negotiations being held towards an attempt at reaching a settlement. I have to agree that the Plaintiff has all along given the impression of stalling the hearing of the suit.
I see on file an application by counsel appearing for the Plaintiff for leave to cease acting for the Plaintiff. That application was scheduled to be heard on the same date as the application now being considered. There was no appearance by counsel on the said date and the Application was left in abeyance. That though will not affect the consideration of this Application.
I find that the plaintiff has not proceeded with diligence and any continued stay of this suit in court records serves no useful purpose save to hang over the head of the Defendant and clog its records and reserves. To do justice to the Applicant is to dismiss the suit with costs which I hereby do. I award costs of the Application to the Defendant/Applicant.
Orders accordingly.
DATED AT ELDORET THIS 27TH DAY OF JANUARY 2009
P.M.MWILU
JUDGE
DELIVERED IN OPEN COURT AT NAIROBI THIS 13TH DAY OF FEBRUARY, 2009.
J. KHAMINWA
JUDGE
DELIVERED IN THE PRESENCE OF:
…………………………….Advocate for the Applicant
……………………………..Advocate for the 1st Defendant
……………………………..Advocate for the 2nd Defendant