[2012] KEHC 2312 (KLR)
The court found that both parties acknowledged the subject matter of the suit had been overtaken by events, and that neither party had taken timely action to formally terminate the proceedings. The plaintiff, as the party who instituted the suit, bore the responsibility to withdraw or discontinue it once it became...
Source-derived case information.
- Citation
- [2012] KEHC 2312 (KLR)
- Parties
- Plaintiff: Sheikh Khalifa Mohamed Ali; Defendant: Daniel M. Kilela; Defendant: Municipal Council of Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- AI Tullu
- 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
Sheikh Khalifa Mohamed Ali
Plaintiff
Daniel M. Kilela
Defendant
Municipal Council of Mombasa
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to prolonged delay.
- 2 Whether the subject matter of the suit has been overtaken by events, rendering the suit futile.
- 3 Who should bear the costs of the suit upon dismissal.
Ratio Decidendi
The court found that both parties acknowledged the subject matter of the suit had been overtaken by events, and that neither party had taken timely action to formally terminate the proceedings. The plaintiff, as the party who instituted the suit, bore the responsibility to withdraw or discontinue it once it became clear that the dispute was moot. The 2nd defendant was also aware of the change in circumstances but did not act until much later. Given the prolonged and unexplained delay, the court exercised its discretion to dismiss the suit for want of prosecution. The court further determined that the 2nd defendant was entitled to one half of the taxed costs, reflecting the shared...
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- One half of the taxed costs to be paid to the 2nd defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATMOMBASA
CIVIL SUIT 1 OF 2001
SHEIKH KHALIFA MOHAMED ALI……….……..…......………………………..PLAINTIFF
VERSUS
DANIEL M. KILELA……………………………..…………………………1ST DEFENDANT
MUNICIPAL COUNCIL OF MOMBASA…………..…………………….2ND DEFENDANT
RULING
Through a Notice of Motion dated 15th April 2008 the 2nd defendant seeks orders that that the suit herein be dismissed with costs for want of prosecution. It is founded on the grounds that it has been five years since the suit was last stood over generally. That the prolonged delay is inexcusable and an abuse of the court process. The plaintiff filed a replying affidavit sworn on 2nd July 2009. His main contention is that the subject matter of the suit has been overtaken by events. That the management of the flat in dispute was taken over by National Housing Corporation and that he has since entered into a lease with National Housing Corporation. That it was futile to proceed with suit against the 2nd defendant because the court does not issue orders in vain. He deponed that his counsel had written letter to the defendants asking that this matter be marked as settled. The letter is still to be marked as exhibit “SK3”. However, it was not attached to the Replying Affidavit.
I have considered the written submissions of the parties. It is no doubt that this is an old matter. Both the plaintiff and the 2nd defendant wish to have the matter terminated. The plaintiff on the basis that the subject matter has been overtaken by events and the 2nd defendant on the basis of want of prosecution.
It is in my view that the Plaintiff ought to have withdrawn or discontinued the suit once the situation had charged as it is his suit. However, it is noted that the 2nd Defendant did not take action either after the property was taken over by National Housing Corporation which fact it does not deny. Both parties knew that the subject matter of the suit was no longer the same and the only issue is that of costs.
This suit is hereby dismissed for want of prosecution with one half of the taxed costs to be paid to the 2nd Defendant. Parties may also agree on such costs. Orders accordingly.
DATED AND SIGNED AT NAIROBI ON THIS 17TH DAY OF JULY 2012.
M.K IBRAHIM
JUDGE
DATED AND DELVIERED AT MOMBASA ON THIS 27TH DAY OF JULY 2012.
R.M. MWONGO
……………………………………………………
JUDGE
Delivered in the presence of: