[2015] KEHC 8059 (KLR)
The court found that the plaintiffs failed to take any steps to prosecute their defamation suits for over five years and did not provide any explanation for the delay. The absence of opposition to the applications and the inordinate delay led the court to conclude that the plaintiffs had lost interest in the suits....
Source-derived case information.
- Citation
- [2015] KEHC 8059 (KLR)
- Parties
- Plaintiff: SBA Technologies Inc; Plaintiff: Julius Mwale; Defendant: Nation Media Group Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 460 & 461 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suits dismissed for want of prosecution
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Defamation, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SBA Technologies Inc
Plaintiff
Julius Mwale
Plaintiff
Nation Media Group Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiffs' suits should be dismissed for want of prosecution under Order 17 Rule 2(3) of the Civil Procedure Rules.
- 2 Whether the delay in prosecuting the defamation suits is inordinate and prejudicial to the defendant.
Ratio Decidendi
The court found that the plaintiffs failed to take any steps to prosecute their defamation suits for over five years and did not provide any explanation for the delay. The absence of opposition to the applications and the inordinate delay led the court to conclude that the plaintiffs had lost interest in the suits. The court held that such delay would render a fair trial impossible and would prejudice the defendant. Consequently, the court exercised its discretion under Order 17 Rule 2(3) of the Civil Procedure Rules to dismiss both suits for want of prosecution.
Court Disposition
suits dismissed for want of prosecution
Orders
- The plaintiffs' suits are dismissed with costs for want of prosecution.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HCCC NO. 460 OF 2010
SBA TECHNOLOGIES INC………..….………………..………..PLAINTIFF
VERSUS
NATION MEDIA GROUP LTD..........................................DEFENDANT
AND
HCCC NO. 461 OF 2010
JULIUS MWALE……………………………………….PLAINTIFF
VERSUS
NATION MEDIA GROUP LIMITED………………………………DEFENDANT
RULING
The Defendant in both suits is the same and has pleaded that both suits are based on defamation and on the same publication. In fact Counsel for the Defendant intimated that the Plaintiff in HCCC NO. 461 OF 2010 is the Director of the Plaintiff Company in HCCC NO. 460 OF 2010. In both suits the Defendant has filed an application by Notice of Motion dated 26th March 2015 (filed on 30th March 2015) for an order to dismiss the Plaintiff’s suit with costs for want of prosecution brought under Order 17 Rule 2(3) of the Civil Procedure Rules (the Rules). For purposes of this ruling, the two applications are consolidated and the outcome shall apply to both suits. Under that rule, if within one year in any suit, no application has been made or step taken by either party, any party to the suit may apply for its dismissal and if cause is not shown to the Court’s satisfaction, it may dismiss it.
The applications are supported by the affidavit of one SEKOU OWINO, the Defendant’s head of legal and training.
The applications have not been opposed by the Plaintiffs despite service upon them. The Plaintiffs’ suit being in defamation must have been filed with the intention of having their good names and reputation vindicated as soon as possible. That was on 11th October 2010. By 30th March 2015 when the present applications were filed it was exactly 5 years later. Surely they ought to have been keener to prosecute their suits.
It has been asserted in both applications that the Defendant has never been served with summons to enter appearance. The delay in prosecuting is 3-4 years in both cases.
There is no explanation offered as no papers were filed in response to the applications to explain the inordinate delay. It appears to me that the Plaintiffs simply lost interest in the suits.
I am satisfied that the long delay in prosecuting these defamation suits will render a fair trial of the actions impossible. The Defendant will be prejudiced, and the suits should not be allowed to continue hanging over its head.
In the circumstances I will allow the application. The Plaintiffs’ suits are dismissed with costs for want of prosecution. It is so ordered.
Dated and delivered at Nairobi this 8th day of December, 2015.
A.MBOGHOLI MSAGHA
JUDGE