[2008] KEHC 1900 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit since 26/03/01 and had failed to appear at the hearing of the application for dismissal, despite being properly served with the notice of motion and hearing date. No explanation for the delay or non-appearance was provided. The court...
Source-derived case information.
- Citation
- [2008] KEHC 1900 (KLR)
- Parties
- Plaintiff: Simon Njoroge Mwangi; Defendant: Nairobi City Council; Defendant: C.M. Kanduthu; Defendant: Richard Chepkonga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1037 of 1996
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- BP Kubo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Simon Njoroge Mwangi
Plaintiff
Nairobi City Council
Defendant
C.M. Kanduthu
Defendant
Richard Chepkonga
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution under Order XVI rule 5 of the Civil Procedure Rules.
- 2 Whether proper notice of the application for dismissal was served on the plaintiff.
- 3 Whether the plaintiff has demonstrated any interest or provided explanation for non-appearance.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit since 26/03/01 and had failed to appear at the hearing of the application for dismissal, despite being properly served with the notice of motion and hearing date. No explanation for the delay or non-appearance was provided. The court inferred from the plaintiff's conduct that he had lost interest in the suit. Accordingly, the court allowed the application and dismissed the suit for want of prosecution, ordering the plaintiff to bear the 1st defendant's costs.
Court Disposition
suit dismissed for want of prosecution
Orders
- The plaintiff's suit filed in 1996 is dismissed for want of prosecution.
- The plaintiff/respondent shall bear the 1st defendant's/applicant's costs of the suit and of the present application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1037 of 1996
SIMON NJOROGE MWANGI………...…………………PLAINTIFF
VERSUS
NAIROBICITY COUNCIL ……………………...1ST DEFENDANT
C.M. KANDUTHU ………………………………2ND DEFENDANT
RICHARD CHEPKONGA………….…………..3RD DEFENDANT
R U L I N G
There is before court a notice of motion application dated 19/11/07 by the 1st defendant seeking dismissal of the suit of the plaintiff herein for want of prosecution. The application is brought under Order XVI rule 5 of the Civil Procedure Rules.
Affidavit evidence before court shows that the plaintiff/respondent was served with the notice of motion through his advocates on record, i.e. Gichuki King’ara & Co. Advocates on 19/02/08 and that they duly acknowledged the application by affixing their stamp and signing within the stamp. The notice of motion indicated that hearing was to be today, 04/06/08. However, the plaintiff has not appeared at today’s hearing either through counsel or in person.
The supporting affidavit of Mary N. Ng’ethe, Director of Legal Affairs in the City Council of Nairobi which is the 1st defendant/applicant herein shows that the last time this matter was in court was on 26/03/01. I have been informed by counsel for 1st defendant/applicant that the plaintiff fixed that date but failed to appear at the hearing. Today’s date for hearing of the present application for dismissal of the plaintiff’s suit is clearly indicated on the notice of motion. The application plus its supporting affidavit were served on the plaintiff/respondent but he has not bothered to appear at today’s hearing and no explanation for non appearance has been proffered. I infer from the plaintiff’s/respondent’s conduct that he has lost interest in pursuing his suit. Accordingly, the notice of motion application dated 19/11/07 is allowed and the plaintiff’s suit filed in 1996 hereby dismissed for want of prosecution. The plaintiff/respondent shall bear the 1st defendant’s/applicant’s costs of the suit and of the present application.
Orders accordingly.
Delivered at Nairobi this 4th day of June, 2008.
B.P. KUBO
JUDGE