[2005] KEHC 528 (KLR)
The court found that the plaintiff had failed to take any meaningful steps to prosecute the suit for over three years after obtaining injunctive relief and the return of the subject motor vehicle. The explanation offered by the plaintiff, namely the death of a director and subsequent company incapacity, was not...
Source-derived case information.
- Citation
- [2005] KEHC 528 (KLR)
- Parties
- Plaintiff: Sherline General Services Ltd; Defendant: Herveen Gadhoke
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 421 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Injunctive Relief, Company Directorship, Adjournment Fees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sherline General Services Ltd
Plaintiff
Herveen Gadhoke
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 inordinate delay by the plaintiff.
- 2 Whether the plaintiff's explanation for the delay, namely the death of a director and subsequent company incapacity, is sufficient to excuse the delay.
- 3 Whether the defendant has suffered prejudice as a result of the plaintiff's conduct.
Ratio Decidendi
The court found that the plaintiff had failed to take any meaningful steps to prosecute the suit for over three years after obtaining injunctive relief and the return of the subject motor vehicle. The explanation offered by the plaintiff, namely the death of a director and subsequent company incapacity, was not supported by evidence of unsuccessful attempts to replace the director or of a new appointment. The court also noted that the defendant had been prejudiced by having to pay adjournment fees imposed on the plaintiff, which the plaintiff ignored. The court held that a party interested in a matter must demonstrate diligence and interest, which the plaintiff failed to do. Accordingly,...
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution as sought by the defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 421 of 2001
SHERLINE GENERAL SERVICES LTD ..................……...…..............…..… PLAINTIFF
- Versus -
HERVEEN GADHOKE ................................................................................. DEFENDANT
Coram: Before Hon. Justice Mwera
Khanna for the applicant
Wameyo for the respondent
Court clerk – Mitoto
RULING
The defendant desires this court to dismiss the suit herein in accordance with O16 r. 5(a) and Section 3A Civil Procedure Act because by the 24th January 2005 when his application was filed, over 3 years had elapsed with the plaintiff taking no steps to list the case for hearing, the pleadings having closed with the filing of the defence on 9th October 2001.
Mr. Khanna told the court that the plaintiff got some injunctive orders in this cause by which the subject motor vehicle was released to it and thus it appeared to have lost interest in prosecuting the case. That the situation being inexcusable and prejudicial to the defendant, the defendant is entitled to the orders sought. He added that indeed to get the cause listed the defendant was obliged on occasions to pay court adjournment fees imposed on the plaintiff, but which it ignored to pay. And that the argument that the plaintiff had for a long time only had one director, after the demise of another, was not good enough to explain the state of things.
On the issue of the demise of one director Mr. Wameyo posited that since his death on 18th November 2002, there had been unsuccessful efforts to replace him but that now one had been appointed and the plaintiff (a private company requiring a minimum of 2 directors) is ready to operate again, including fixing early hearing dates. That that would allow the plaintiff company to prove its claim on loss of business at Kshs. 30,000/- per day when the subject motor vehicle was not in the hands of the plaintiff.
Having considered this case and circumstances surrounding it, the orders sought ought to be granted. The plaintiff got the motor vehicle in question and that seems to have done it all. There is no evidence that there were unsuccessful attempts to replace the dead director or that another has been appointed. It has not been denied that the defendant has had to pay fees imposed on the plaintiff, which the plaintiff ignored to pay. One interested in a matter should show it – not with such a conduct.
In sum orders are granted as sought.
Orders delivered on 28th December 2005.
J.W. MWERA
JUDGE