[2011] KEHC 4137 (KLR)
The court found that the Plaintiffs had failed to take any steps to prosecute the suit for over two years since the last adjournment, and that they neither filed a response to the application nor attended the hearing despite being duly served. The court held that this demonstrated a lack of interest in prosecuting...
Source-derived case information.
- Citation
- [2011] KEHC 4137 (KLR)
- Parties
- Plaintiff: Salome Wanjiku Miringa and Josephine Mwangi (Suing on their behalf and on behalf of Kujitolea Women Group); Defendant: The Kenya Power & Lighting Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 672 of 2000
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution; costs awarded to Defendant.
- Judges
- CM Njagi
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award, Ex Parte Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Wanjiku Miringa and Josephine Mwangi (Suing on their behalf and on behalf of Kujitolea Women Group)
Plaintiff
The Kenya Power & Lighting Company Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the Plaintiffs' suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the Defendant is entitled to costs of the application and the suit.
Ratio Decidendi
The court found that the Plaintiffs had failed to take any steps to prosecute the suit for over two years since the last adjournment, and that they neither filed a response to the application nor attended the hearing despite being duly served. The court held that this demonstrated a lack of interest in prosecuting the case. In accordance with Order XVI Rule 5(d) of the Civil Procedure Rules, the court exercised its discretion to dismiss the suit for want of prosecution. The court further awarded costs of the application and the suit to the Defendant, as the Plaintiffs' inaction had necessitated the application and wasted judicial resources.
Court Disposition
Suit dismissed for want of prosecution; costs awarded to Defendant.
Orders
- The Plaintiffs’ suit is dismissed for want of prosecution as prayed.
- The Plaintiffs shall pay the Defendant’s costs of this application as well as the costs of the suit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION – MILIMANI
CIVIL CASE NO. 672 OF 2000
SALOME WANJIKU MIRINGA and
JOSEPHINE MWANGI
(Suing on their behalf andon behalf of Kujitolea Women Group)...........................................PLAINTIFFS
VERSUS
THE KENYA POWER & LIGHTINGCOMPANY LIMITED ................................................................DEFENDANT
R U L I N G
By an application by Notice of Motion dated 19th January, 2010, the Defendant seeks from the Court orders that the Plaintiffs’ suit be dismissed for want of prosecution and that the Plaintiffs do pay to the Defendant the costs of this application as well as those of the suit. The application is brought under Order XVI Rule 5 (d)of theCivil Procedure Rules.
The application is supported by the annexed affidavit of Michi Kirimi, an Advocate in the firm of the Advocates who have the conduct of this suit on behalf of the Applicant. It is based on the grounds that –
The Plaintiffs have failed to set down the suit for hearing or take steps to prosecute the suit to-date since the matter was last adjourned on 19th November, 2007, and more than 2 years have since elapsed.
The delay in prosecuting this case is prejudicial to the Defendant.
It is in the interests of justice that the suit be dismissed.
On the date appointed for the hearing of the application, Mr. Murugara
appeared for the Applicant but the Respondents neither appeared, nor were they represented. According to the record, the Plaintiffs’ Advocates were initially represented by the firm of Eboso & Wandago, Advocates which firm appears to have split into the firms of Eboso & Co. Advocates, and Okong’o Wandago & Co. Advocates. An affidavit of service sworn by Godwin Maina, a process server of this Court, shows that he served the firm of Eboso & Co. Advocates on 15th November, 2010. This service is confirmed by that firm’s rubber stamp of that date. The same affidavit shows that Wandago, Advocate, was served on 19th November, 2010 at his office in the chambers of Okong’o Wandago & Co., Advocates and that a copy of the application was left with him but that he refused to acknowledge receipt. Service was effected by leaving a copy thereof with the Advocates’ Secretary who did not give her name citing that they did not have instructions from the Plaintiffs. On being satisfied that the Plaintiffs’ Advocates were duly served but failed to attend court for the hearing, the Court proceeded ex parte.
Mr. Murugara for the Applicant relied on the 3 grounds on which the application was based and asked the Court to grant the orders as prayed. It is instructive that from the date the application was served, the Respondents filed neither a replying affidavit nor grounds of opposition. And on the hearing date, they chose not to attend Court. This is a clear manifestation of their lack of interest in prosecuting this case and, in the circumstances, the application is unopposed and the Applicant is entitled to the orders sought.
I accordingly make the following orders –
(a) The Plaintiffs’ suit herein be and is hereby dismissed forwant of prosecution as prayed.
(b) The Plaintiffs’ will pay the Defendant’s costs of thisapplication as well as the costs of the suit.
Orders accordingly.
DATEDand DELIVEREDat NAIROBIthis 20th day of January, 2011.
L NJAGI
JUDGE