[2007] KEHC 670 (KLR)
The court found that the Plaintiff had not taken any step to prosecute the suit since 15th December, 2004, and had failed to pay the required adjournment fees. The Plaintiff did not respond to the application for dismissal and provided no explanation for the delay. The court held that the delay was prolonged and...
Source-derived case information.
- Citation
- [2007] KEHC 670 (KLR)
- Parties
- Plaintiff: Solomon Kiragu Thande; Defendant: Co-operative Merchant Bank Limited; Defendant: Joseph Gikonyo (T/a Garam Investments)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1218 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application allowed; suit dismissed for want of prosecution with costs to defendants
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Adjournment Fees, Court Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Kiragu Thande
Plaintiff
Co-operative Merchant Bank Limited
Defendant
Joseph Gikonyo (T/a Garam Investments)
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 due to prolonged inaction.
- 2 Whether the delay in setting down the suit for hearing is excusable.
Ratio Decidendi
The court found that the Plaintiff had not taken any step to prosecute the suit since 15th December, 2004, and had failed to pay the required adjournment fees. The Plaintiff did not respond to the application for dismissal and provided no explanation for the delay. The court held that the delay was prolonged and inexcusable, indicating a loss of interest in the suit. Allowing the suit to remain pending would be prejudicial to the Defendants. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution with costs to the Defendants.
Court Disposition
application allowed; suit dismissed for want of prosecution with costs to defendants
Orders
- The Plaintiff’s suit is dismissed for want of prosecution.
- Costs awarded to the Defendants.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS COMMERCIAL AND TAX DIVISION)
CIVIL CASE 1218 OF 2001
SOLOMON KIRAGU THANDE …………………….......………PLAINTIFF
V E R S U S
1. CO-OPERATIVE MERCHANT BANK LIMITED
2. JOSEPH GIKONYO (T/a Garam Investments) ….…..DEFENDANTS
R U L I N G
There has been considerable delay in the preparation and delivery of this ruling. The same was occasioned by my serious illness in 2006 and the long attendant recuperation. The delay is regretted.
This is an application by the 1st Defendant (by notice of motion dated 6th February, 2006). It seeks under Order 16, rule 5 (d) of the Civil Procedure Rules (the Rules) an order for dismissal of the Plaintiff’s suit for want of prosecution. It is alleged that the Plaintiff has failed to prosecute the suit since 15th December, 2004 without any reasonable or just cause. The application is supported by an affidavit sworn by ICHAU MUTAHI, the 1st Defendant’s learned counsel.
The Plaintiff was duly served with the application on 9th March 2006. He did not file any papers in response thereto. The application is therefore unopposed.
I have perused the record of court. The suit was last in court on 15th December, 2004 for hearing. It was stood over generally upon the Plaintiff’s application. The Plaintiff was ordered to pay court adjournment fees. Since that date the Plaintiff has not set the suit down for hearing.
I am satisfied from the supporting affidavit that the 1st Defendant tried to set down the suit for hearing. Its efforts in that regard were frustrated by the Plaintiff’s failure to pay the court adjournment fees ordered on 15th December, 2004. The 1st Defendant therefore elected to make the present application.
As already observed, the Plaintiff did not file any papers to the present application. Again, as already observed, the Plaintiff has not taken any step since 15th December 2004 to set down the suit for hearing. In the circumstances of this case, this delay is prolonged and inexcusable as there has not been any explanation for it. I am satisfied, in the circumstances, that the Plaintiff has lost interest in the suit. It should not be permitted to hang over the Defendant’s head indefinitely.
In the result I will allow the application. The Plaintiff’s suit be and is hereby dismissed with costs to the Defendants for want of prosecution. Orders accordingly.
DATED AT NAIROBI THIS 28TH DAY OF AUGUST 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 31st DAY OF AUGUST, 2007