[2006] KEHC 1503 (KLR)
The court found that the plaintiff had failed to prosecute the suit for over 11 years without any satisfactory explanation. The previous application for dismissal was dismissed as premature, but since then, no steps have been taken to substitute the plaintiff or provide proof of death. The delay is both prolonged...
Source-derived case information.
- Citation
- [2006] KEHC 1503 (KLR)
- Parties
- Applicant: Rosebella Akoth Odipo; Defendant: Mugoya Construction & Engineering Co. Ltd; Defendant: Karuru Mbugua; Defendant: Ragira Aosa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 3539 of 1990
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- JL Osiemo
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Prejudice to Defendant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosebella Akoth Odipo
Applicant
Mugoya Construction & Engineering Co. Ltd
Defendant
Karuru Mbugua
Defendant
Ragira Aosa
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution due to inordinate and inexcusable delay.
- 2 Whether the delay has prejudiced the defendants.
Ratio Decidendi
The court found that the plaintiff had failed to prosecute the suit for over 11 years without any satisfactory explanation. The previous application for dismissal was dismissed as premature, but since then, no steps have been taken to substitute the plaintiff or provide proof of death. The delay is both prolonged and inexcusable, and it is prejudicial to the defendants to keep the matter pending indefinitely. Therefore, the court exercised its discretion to dismiss the suit for want of prosecution in accordance with the Civil Procedure Rules and the inherent powers of the court.
Court Disposition
suit dismissed for want of prosecution
Orders
- The plaintiff's suit is dismissed for want of prosecution in terms of prayer 1 and 2 of the Notice of Motion dated 10th August 2005.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 3539 of 1990
ROSEBELLA AKOTH ODIPO…………………...........................................................……………APPLICANT
VERSUS
MUGOYA CONSTRUCTION & ENGINEERING CO. LTD………………………...............1st DEFENDANT
KARURU MBUGUA….…………………………..........................................................……..2ND DEFENDANT
RAGIRA AOSA………………………….......................................................………..………3RD DEFENDANT
RULING
The 1st defendant by way of this Notice of Motion expressed to be brought under Order L Rule 1, order XVI Rule 5(d) of the Civil Procedure Rules and Section 3A of the Civil Procedure Codes seeks orders that the plaintiff’s suit be dismissed for want of prosecution.
The application is based on the grounds that there has been inordinate delay by the plaintiff and or his advocates on record in prosecuting their case in court now over 11 years; that the plaintiffs apparent disinterest and delay in prosecuting this suit is inexecusable, that the first defendant should not be kept in indefinite abeyance by the plaintiff’s reluctance in prosecuting her case. The application is also supported by an affidavit sworn by Rose Munyasia counsel seized with this matter who avers that this is the second application by the applicant to have the suit against the applicant dismissed for want of prosecution. The first one was heard on 12th November 2003 but was dismissed for being premature, that the plaintiff’s advocate had alleged that the plaintiff had passed away and was in the process of obtaining letters of administration but todate neither has the said advocate made any application for substitution nor provided the letters of administration nor is there proof tendered by the said advocate to show that the plaintiffs herein has passed away.
A suit can be dismissed for want of prosecution if the plaintiff has been guilty of prolonged and inexcusable delay which has seriously prejudiced the defendant. In the instant suit there is no explanation for the delay for the last 11 years. This is a suitable case for dismissal for want of prosecution. The application is allowed in terms of prayer 1 and 2 of the Notice of Motion dated 10th August 2005.
Dated and delivered at Nairobi this 18th day of July 2006.
J.L.A. OSIEMO
JUDGE