[2009] KEHC 2438 (KLR)
The court found that the last action in the matter occurred on 20th July, 2004, and that nearly five years had passed without any steps being taken by the plaintiff to prosecute the suit. The court was satisfied that the plaintiff had lost interest in the matter and that it would be prejudicial to the defendants to...
Source-derived case information.
- Citation
- [2009] KEHC 2438 (KLR)
- Parties
- Plaintiff: Simon Mburu Kiando; Defendant: Kenya Power & Lighting Co. Limited; Defendant: Wambugu Kanyi Samuel
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 518 of 2000
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- SP Ouko
- 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
Simon Mburu Kiando
Plaintiff
Kenya Power & Lighting Co. Limited
Defendant
Wambugu Kanyi Samuel
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 inaction by the plaintiff.
- 2 Whether the delay in prosecuting the suit has prejudiced the defendants.
Ratio Decidendi
The court found that the last action in the matter occurred on 20th July, 2004, and that nearly five years had passed without any steps being taken by the plaintiff to prosecute the suit. The court was satisfied that the plaintiff had lost interest in the matter and that it would be prejudicial to the defendants to remain in suspense. Applying Order 16 rules 5 and 6 of the Civil Procedure Rules, the court exercised its discretion to dismiss the suit for want of prosecution, concluding that the requirements for dismissal had been met due to the inordinate and unexplained delay.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit herein is dismissed with costs for want of prosecution.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Case 518 of 2000
SIMON MBURU KIANDO ……………………………………….. PLAINTIFF
VERSUS
KENYA POWER & LIGHTING CO. LIMITED ……………1ST DEFENDANT
WAMBUGU KANYI SAMUEL …………………………… 2ND DEFENDANT
RULING
The notice of motion dated 25th August, 2006 brought pursuant to Order 16 rules 5 and 6 of the Civil Procedure Rules was argued exparte as the plaintiff/respondent did not respond to it or attend court when it came up for hearing despite notice.
The defendant/applicant contends that the plaintiff/respondent has failed to take any steps in the matter since 20th July, 2004 when it was stood over generally; that due to that delay the defendant/applicant has been prejudiced. Under order 16 rule 5 aforesaid the court may, within three months after the close of pleadings or the removal of the suit from the hearing list or the adjournment of the suit generally, on the application of the defendant or on its own motion, on notice to the parties, set down the suit for hearing. Alternatively the defendant may apply for its dismissal. The applicant has elected to apply for its dismissal.
HCCC.518/2000
Rule 6 on the other hand gives the court the power to dismiss a suit for want of prosecution if the parties have failed to make any application or take any steps in the matter for three years. It is clear to me that the last action in this matter was before Apondi J. on 20/7/2004, when interlocutory judgment entered against the 2nd defendant was set aside and thereafter matter stood over generally. Nearly five years have passed and no action has been taken to move the matter forward. I am satisfied that the respondent has lost interest in the matter and it will be prejudicial to the applicant to be kept in suspense.
It is ordered that the suit herein be and is hereby dismissed with costs for want of prosecution.
Dated and delivered at Nakuru this 1st day of July, 2009.
W. OUKO
JUDGE