[2007] KEHC 3594 (KLR)
The court found that the Plaintiff had failed to take any steps to prosecute the suit since it was last fixed for hearing in August 2001, amounting to a delay of approximately 14 years. The Plaintiff did not oppose the application for dismissal, nor did they provide any explanation for the delay. The court held that...
Source-derived case information.
- Citation
- [2007] KEHC 3594 (KLR)
- Parties
- Plaintiff: Sebeline Gamitili Thiringi & Hellen Gatambi Jacob (as Legal Representatives/Dependants of the estate of Jacob M’Itimitu, Deceased); Defendant: Francis Kinanga; Defendant: Mucee G. Kaguange; Defendant: Esso Motor Sales & Station
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 562 of 1994
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the Defendants
- Judges
- JL Osiemo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sebeline Gamitili Thiringi & Hellen Gatambi Jacob (as Legal Representatives/Dependants of the estate of Jacob M’Itimitu, Deceased)
Plaintiff
Francis Kinanga
Defendant
Mucee G. Kaguange
Defendant
Esso Motor Sales & Station
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 Defendants are entitled to costs of the suit and the application.
Ratio Decidendi
The court found that the Plaintiff had failed to take any steps to prosecute the suit since it was last fixed for hearing in August 2001, amounting to a delay of approximately 14 years. The Plaintiff did not oppose the application for dismissal, nor did they provide any explanation for the delay. The court held that the delay was inordinate and inexcusable, and that the Defendants were entitled to have the suit dismissed for want of prosecution under Order XVI Rule 5(d) of the Civil Procedure Rules. The court exercised its discretion to dismiss the suit and awarded costs to the Defendants.
Court Disposition
suit dismissed for want of prosecution with costs to the Defendants
Orders
- The suit is dismissed for want of prosecution.
- The Defendants are awarded costs of the suit and the application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 562 of 1994
SEBELINE GAMITILI THIRINGI & HELLEN GATAMBI JACOB (both suing
as the Legal Representative/Dependants of the estate of)
JACOB M’ITIMITU (Deceased)…………….....……………….………..PLAINTIFF
VERSUS
FRANCIS KINANGA………………...………..…………..………1ST DEFENDANT
MUCEE G. KAGUANGE……………..…....……………………..2ND DEFENDANT
ESSO MOTOR SALES & STATION…….…….......……………3RD DEFENDANT
RULING
This is an application by the Defendants under Order XVI Rule 5 (d) of the Civil Procedure Rules for an order that the Plaintiff’s suit against them be dismissed for want of prosecution. The Defendants say there has been inordinate delay. In support of the application James Kironji Mwenja Advocate for the Defendants has sworn an affidavit giving grounds for the application. The facts as gathered from the affidavit evidence are that the claim arises out of a traffic road accident which occurred on 18th May 1991 involving a motor vehicle registration NO. KAA 904V in which the deceased Jacob M’Itimitu was traveling as a lawful passenger.
This suit was filed on 10th February 1994 by the Plaintiffs suing as legal representatives of the estate of the deceased. The plaint was amended on 25th February 1994 and further amended on 15th June 1999. The defence was filed on 18th April 1997 and amended on 29th June 1999.
From the court record, it is evident that the Plaintiff has not been keen to set the suit down for hearing. The last time and the only time it had been fixed down for hearing was on 31st August 2001 and when it was taken out and since then the Plaintiff has taken no step to set the suit down for hearing.
The Plaintiff was served with this application but he did not file any papers in opposition nor did he appear in court to oppose the application. The application is unopposed.
Order XVI Rule 5 (d) provides that if within 3 months after the adjournment of the suit generally the Plaintiff does not set down the suit for hearing, the Defendant may either set down the suit for hearing or apply for its dismissal. The suit has been in court for about 14 years and Mr. Kironji for the Defendants submits that it is a proper case in which the Plaintiff’s action should be dismissed under Rule 5.
I agree with Mr. Kironji for the Defendants that there has been inordinate and inexcusable delay on the part of the Plaintiff.
Accordingly I dismiss this suit for want of prosecution with costs to the Defendant as well as the costs for this application.
Dated and delivered at Nairobi this 17th day of July 2007.
J.L.A. OSIEMO
JUDGE