[1998] KEHC 283 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for over three and a half years after the close of pleadings. The explanation offered by the plaintiff, namely the non-availability of evidence, was rejected as insufficient because evidence should have existed before the suit was...
Source-derived case information.
- Citation
- [1998] KEHC 283 (KLR)
- Parties
- Plaintiff: Ruaha Concrete Company Ltd; Defendant: Monareh Insurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 5262 of 1993
- 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
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruaha Concrete Company Ltd
Plaintiff
Monareh Insurance Co. 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 due to inordinate delay by the plaintiff.
- 2 Whether the plaintiff's explanation for the delay is sufficient to prevent dismissal.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for over three and a half years after the close of pleadings. The explanation offered by the plaintiff, namely the non-availability of evidence, was rejected as insufficient because evidence should have existed before the suit was filed. The court held that the delay was inordinate and unjustified, and that retaining the suit on the record would not serve the interests of justice. Consequently, the suit was dismissed for want of prosecution, and the defendant was awarded the costs of the suit and the application.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The suit is dismissed for want of prosecution.
- The defendant shall have the costs of the suit and the application.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 5262 OF 1993RUAHA CONCRETE COMPANY LTD...............................PLAINTIFF VERSUS MONAREH INSURANCE CO. LTD....................................DEFENDANT
RULING
This is an application under Order 16 Rule 5 of the Civil Procedure Rules and section 3A of the Civil Procedure Act by way of Chamber Summons seeking an order that the suit herein be dismissed for want of prosecution.
The defence herein was filed on 7th June, 1994 and pleadings were deemed to have been closed 14 days thereafter. For over 31/2 years no steps have been taken by the plaintiff in this matter. Summons for directions have not been taken out and no interlocutory applications have been filed since that time. I have seen the affidavit in reply to the application but with respect, there must have been some evidence existing before this suit was filed and therefore, the excuse that the delay was caused by none availability of evidence cannot stand.
I know that striking a pleading is a drastic measure to take but the circumstances of this case do not call for the retention of this suit in the records.
Accordingly this suit is hereby dismissed with costs for want of prosecution. The defendant shall have the costs of the suit and this application.
Orders accordingly.
Dated and delivered at Nairobi this 31st day of July, 1998
A. MBOGHOLI MSAGHAJUDGE