[2007] KEHC 2219 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the originating summons since December 2001, despite being prompted to provide an explanation for the delay. The court held that the continued pendency of the suit was causing prejudice and suffering to the defendant, particularly due to...
Source-derived case information.
- Citation
- [2007] KEHC 2219 (KLR)
- Parties
- Plaintiff: Rose Wanjiru Stokes; Defendant: Jonathan James Stokes
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 263 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Maintenance Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Wanjiru Stokes
Plaintiff
Jonathan James Stokes
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiff's inaction.
- 2 Whether the delay in prosecuting the suit has caused prejudice to the defendant.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the originating summons since December 2001, despite being prompted to provide an explanation for the delay. The court held that the continued pendency of the suit was causing prejudice and suffering to the defendant, particularly due to the unresolved maintenance claim. In the absence of any explanation from the plaintiff, the court exercised its discretion to dismiss the suit for want of prosecution under Order XVI rule 5 of the Civil Procedure Rules.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution under Order XVI rule 5 of the Civil Procedure Rules.
- Costs of the motion to be paid by the defendant.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Misc Cause 263 of 2001 (OS)
ROSE WANJIRU STOKES ……………...………………PLAINTIFF
VERSUS
JONATHAN JAMES STOKES …………..…….…….DEFENDANT
R U L I N G
Pursuant to Order XVI rule 5(a), (c) and (d) and order L rule 1 of the Civil Procedure rules, Jonathan James Stokes the defendant herein, took out a motion in which he sought for this suit to be dismissed for want of prosecution. The defendant has filed an affidavit he swore in support of the motion. Despite having been served, Rose Wanjiru Stokes the plaintiff chose not to respond to the application.
It is the submission of the defendant that the plaintiff has failed to take any steps since 7th December 2001 to have the Originating Summons heard and determined. This court has been urged to hold that the pendency of suit is to the utter detriment of the defendant.
I have perused the record and the submissions over this motion. What emerges out clearly is that the plaintiff did not take any steps to have the originating summons dated 27th September 2001 to be listed for hearing since 10th December 2001. Despite being prompted to give an explanation for such a delay. In the circumstances, I have no reason as to why I should refuse the defendant’s application. The pendency in my view is causing untold suffering to the defendant in view of the fact that a claim of Kshs.50,000/- maintenance is hanging over his head.
In the end I am satisfied that the suit should be and is hereby dismissed for want of prosecution under Order XVI rule 5 of the Civil Procedure rules. Costs of the motion which shall be paid by the defendant.
Dated and delivered at Mombasa this 9th Day of February 2007.
J.K. SERGON
J U D G E