[2014] KEHC 4793 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit since 2009, despite being served with the application for dismissal and having ample opportunity to respond. The court applied the principle that while dismissal for want of prosecution should be approached with caution, prolonged and...
Source-derived case information.
- Citation
- [2014] KEHC 4793 (KLR)
- Parties
- Plaintiff: Robert Gachuhi Mwathi; Defendant: Peter Waweru Mwangi; Defendant: Samuel Njoroge Mikui; Defendant: Joseph Mwangi Macharia
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 43 of 2004
- 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
- Judges
- L Waithaka
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award, Application for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Gachuhi Mwathi
Plaintiff
Peter Waweru Mwangi
Defendant
Samuel Njoroge Mikui
Defendant
Joseph Mwangi Macharia
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 inaction by the plaintiff since 2009.
- 2 Whether the defendants are entitled to costs upon dismissal of the suit.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit since 2009, despite being served with the application for dismissal and having ample opportunity to respond. The court applied the principle that while dismissal for want of prosecution should be approached with caution, prolonged and unexplained inactivity by the plaintiff justifies dismissal. The absence of any response or appearance by the plaintiff, coupled with the support of the application by the other defendants, led the court to conclude that the plaintiff had lost interest in the matter. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution and awarded costs to...
Court Disposition
suit dismissed for want of prosecution with costs to the defendants
Orders
- The plaintiff's suit is dismissed for want of prosecution.
- Costs of the suit are awarded to the defendants.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL CASE NO. 43 OF 2004 ( ELC 333 OF 2012)
ROBERT GACHUHI MWATHI.............1ST PLAINTIFF/RESPONDENT
VERSUS
PETER WAWERU MWANGI…………..........………1ST DEFENDANT
SAMUEL NJOROGE MIKUI…………….…..........…2ND DEFENDANT
JOSEPH MWANGI MACHARIA……3RD DEFENDANT/ APPLICANT
RULING
1. This is the 3rd defendant's Notice of Motion dated 23rd August, 2012seeking an order of this court that this suit be dismissed for want of prosecution and that costs of the suit be provided for.
2. The Application is expressed to be brought under order 51 rule 1and order 17 rule 2 of the Civil Procedure Rules 2010.
3. The application is anchored on a Supporting Affidavit deponed by George Kirumba Mbiyu Counsel for the 3rd defendant sworn on 23rd August, 2012 and on the grounds on the face of the application.
4. The 3rd Defendant sets out his case as follows; that the suit was last fixed for hearing on 20th May, 2009 for an application for leave to amend the plaint. That since then, no action has been taken by the plaintiff in this matter. Therefore, the plaintiff is not interested in prosecuting the suit and the same should be dismissed with costs.
5. An affidavit of service was sworn by George K. Mbiyu, an advocate of the High court of Kenya , on 14th January, 2014 in which he depones that he served the plaintiff's Counsel M/S Muthanwa & Co Advocates who acknowledged service on 5th December, 2013. The plaintiff did not respond to the application nor appear despite service.
6. Counsel for the 1st and 2nd defendants did not oppose the application. He supported dismissal of the suit stating that they had filed a similar application dated 8th October, 2009. He urged the court to dismiss the suit with costs.
7. I have perused the court record and heard submissions by counsels for the defendants. I take the following views on the matter.
8. It is true to say that the court should be slow to dismiss a suit for want of prosecution if the suit can be heard without any further delay, if the defendant will not suffer any hardship and if there has been no flagrant and culpable in activity Victory Construction Company vs. A. N. Duggan (1962)E.A. 697. But in this case where the Plaintiff has taken no action to move the court since 2009, I am persuaded that the plaintiff has lost interest in the suit.
8. I therefore find the Notice of Motion dated 23rd August, 2012 merited and dismiss the plaintiff's suit for want of prosecution with costs to the defendants.
Dated, signed and delivered in open Court at Nakuru this 16th day of May 2014.
L N WAITHAKA
JUDGE
PRESENT
N/A for plaintiff
N/A for defendants
Emmanuel Maelo: Court Assistant
L N WAITHAKA
JUDGE