[2019] KEHC 1637 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for a period of one year and six months since the last court appearance. No explanation was provided for this delay, and the plaintiff did not respond to the motion or attend court. The court held that such inordinate and...
Source-derived case information.
- Citation
- [2019] KEHC 1637 (KLR)
- Parties
- Applicant: St Mary’s Mission Hospital High School through the Board; Defendant: St Mary’s Mission Hospital Limited; Defendant: Assumption Sisters of Nairobi Registered Trustees
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 12 of 2018
- Procedural Posture
- Civil Suit / Ruling on Motion to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendants
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Mandatory Injunction, Preliminary Objection, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
St Mary’s Mission Hospital High School through the Board
Applicant
St Mary’s Mission Hospital Limited
Defendant
Assumption Sisters of Nairobi Registered Trustees
Defendant
Procedural Posture
Civil Suit / Ruling on Motion to Dismiss 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 provided any justification for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for a period of one year and six months since the last court appearance. No explanation was provided for this delay, and the plaintiff did not respond to the motion or attend court. The court held that such inordinate and unexplained delay justified dismissal of the suit for want of prosecution under Order 17 rules 1, 2 and 3 of the Civil Procedure Rules. The defendants' motion was therefore allowed, and the suit was dismissed with costs to the defendants.
Court Disposition
suit dismissed for want of prosecution with costs to the defendants
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 12 OF 2018
ST MARY’S MISSION HOSPITAL HIGH SCHOOL
THROUGH THE BOARD.....................................................APPLICANT
-VERSUS-
ST MARY’S MISSION HOSPITAL LIMITED..........1ST DEFENDANT
ASSUMPTION SISTERS OF NAIROBI
REGISTERED TRUSTEES.........................................2ND DEFENDANT
RULING
1) Pursuant to the provisions of Order 17 rules 1, 2 and 3 of the Civil Procedure Rules, the defendants took out the motion dated 2/8/2019 whereof they sought for this suit to be dismissed for want of prosecution with costs. The motion is supported by the affidavit sworn by Wanja G. Wambugu. The motion was served upon the plaintiff through the firm of Mwangi E. G. & Co. Advocates.
2) The plaintiffs did file any response to the motion hence this court permitted the defendants’ advocate to prosecute the motion exparte. The plaintiff and its advocate did not also attend court.
3) I have considered the grounds stated on the face of the motion and the facts deponed in the supporting affidavit. It is stated by the defendants that the plaint was filed on 12th January 2018 and that the plaintiff has not taken any steps to have the matter set down for hearing. The deponent of the supporting affidavit averred that the suit was last in court for hearing on 17th May 2018 and no steps have been taken to have it ready for hearing. On the basis of the above reason, this court was urged to dismiss the action for want of prosecution.
4) The record shows that this suit was filed on 12th January 2018 contemporaneously with the motion dated 11th January 2018 in which the plaintiff sought for inter alia an order of mandatory injunction to compel the defendants to reopen the school known as St. Mary’s Mission Hospital High School, Lang’ata pending the hearing and determination of this suit.
5) The plaintiff also applied for an order of injunction to restrain the defendants from closing, chasing away the teachers and students or from interfering with the smooth and quiet learning in St. Mary’s Mission Hospital High School, Lang’ata pending the hearing and determination of this suit.
6) While the application is pending hearing, the defendants filed a Notice of Preliminary Objection dated 24. 1.2018 in which they sought to have the suit struck out for being resjudicata. It was pointed out that there was a pending Nakuru ELC no. 224 of 2010. The preliminary objection was heard and dismissed by Lady Justice Githua in a ruling she delivered on 17th May 2018.
7) It would appear since then nothing in the file happened until 6/8/2019 when the motion dated 2/8/2019 was filed. The motion dated 11. 1.2018 has never been fixed for interpartes hearing.
8) It is clear that this suit was last in court on 17. 5.2018 for the delivery of the ruling on the notice of preliminary objection dated 24. 1.2018.
9) A period of one year six months has lapsed and no step has been taken to have this suit fixed for hearing. There is no explanation which has been given to justify the delay. This is a case therefore which is fit for dismissal.
10) In the end, I find the defendants’ motion dated 2/8/2019 to be meritorious hence it is allowed as prayed. Consequently, this suit is dismissed for want of prosecution with costs to the defendants.
Dated, signed and delivered at Nairobi this 1st day of November, 2019.
...............................
J. K. SERGON
JUDGE
In the presence of:
……………………………. for the Appellant
……………………………. for the Respondent