[2007] KEHC 2466 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit since 2nd December, 1992, when his application for injunction was dismissed. The matter was stood over generally on 29th November, 1993, and no action was taken for approximately eleven years. The court held that such inordinate delay...
Source-derived case information.
- Citation
- [2007] KEHC 2466 (KLR)
- Parties
- Plaintiff: Stanely Muriithi Paul; Defendant: Consolidated Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 394 of 1992
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution with costs to the applicant.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Injunctions, Mortgage Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanely Muriithi Paul
Plaintiff
Consolidated Bank of Kenya
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 inordinate delay by the plaintiff.
- 2 Whether the plaintiff took any steps to prosecute the suit after the dismissal of the injunction application.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit since 2nd December, 1992, when his application for injunction was dismissed. The matter was stood over generally on 29th November, 1993, and no action was taken for approximately eleven years. The court held that such inordinate delay demonstrated a lack of interest in prosecuting the suit and justified dismissal for want of prosecution under Order 16 rule 5(d) of the Civil Procedure Rules. The court exercised its discretion to dismiss the suit, noting that it ought to have been dismissed much earlier, and awarded costs to the applicant.
Court Disposition
Suit dismissed for want of prosecution with costs to the applicant.
Orders
- The respondent’s suit filed on 16th November, 1992 is dismissed for want of prosecution.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Case 394 of 1992
STANELY MURIITHI PAUL ………………………………........………… PLAINTIFF
VERSUS
CONSOLIDATED BANK OF KENYA....................................................DEFENDANT
RULING
The respondent in this application brought an action against the applicant seeking
(a) a declaration that the intended sale of the respondent’s land No.Ngariama/Ngiriambu/1290 was fraudulent, null and void
(b) a declaration that there is no legal mortgage enforceable in law
(c) a declaration that the respondent is not indebted to the applicant
(d) injunction against the applicant restraining it from advertising, selling transferring and/or interfering with the suit land
(e) General and special damages
(f) Costs
That suit was filed on 16th November, 1992. As is the practice the suit was filed on the same day simultaneously with an application under certificate of urgency seeking, in the main, temporary injunction against the applicant.
That application was dismissed on 2nd December, 1992. On 29th November, 1993, nearly one year later the matter was before the Deputy Registrar but it is not clear why. On that day both parties were absent and it was marked S.O.G (Stood Over Generally).
On 21st May, 2003, about 10 years later the applicant brought the present application in which it seeks that the suit against it be dismissed for want of prosecution citing the delay in prosecuting the suit.
The application was canvassed exparte as the respondent or his counsel did not attend the hearing of the application despite service. Neither did they reply to the application.
From the background set out above it is clear that the last time the respondent took any steps in this matter was on 2nd December, 1992 when his application for injunction was dismissed.
That is a period of eleven (11) years. The same was stood over generally on 29th November, 1993. Under the provisions of Order 16 rule 5(d) of the Civil Procedure Rules, the court is vested with jurisdiction to, either on application by the defendant or on its own motion on notice to the parties, set down for hearing the suit which the plaintiff has failed to set down for hearing, or to dismiss it.
This is a suit where the respondent, after losing his application for injunction lost interest and hope and went to sleep. It is a suit which ought to have been dismissed 11 years ago. But its time has come and it is ordered that the respondent’s suit filed on 16th November, 1992 shall be and is hereby dismissed for want of prosecution with costs to the applicant.
DATED AND DELIVERED AT MERU THIS 20TH DAY OF JULY, 2007
W. OUKO
JUDGE