[2015] KEHC 2513 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit for over three and a half years since 6th June 2007, and had not offered any explanation for the delay despite being served with the application. The court held that such inordinate delay demonstrated a lack of interest in pursuing the...
Source-derived case information.
- Citation
- [2015] KEHC 2513 (KLR)
- Parties
- Plaintiff: Stanley Kipkurui Mutai; Defendant: Tegat Tea Factory Co. Ltd; Defendant: Willis Odhiambo-Zonal Manager; Defendant: Benjamin K. Kirui; Defendant: Alfred Koech; Defendant: Kenya Tea Development Authority
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 81 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- A Mshila
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Exercise of Discretion, Prejudice to Defendant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Kipkurui Mutai
Plaintiff
Tegat Tea Factory Co. Ltd
Defendant
Willis Odhiambo-Zonal Manager
Defendant
Benjamin K. Kirui
Defendant
Alfred Koech
Defendant
Kenya Tea Development Authority
Defendant
Procedural Posture
Civil Suit / 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 defendants have suffered prejudice as a result of the delay.
- 3 Whether the court should exercise its discretion to dismiss the suit in the circumstances.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit for over three and a half years since 6th June 2007, and had not offered any explanation for the delay despite being served with the application. The court held that such inordinate delay demonstrated a lack of interest in pursuing the suit and prejudiced the defendants by keeping the matter pending indefinitely. The court exercised its discretion to dismiss the suit for want of prosecution, noting that the circumstances justified such an order and that no sufficient cause had been shown by the plaintiff.
Court Disposition
suit dismissed for want of prosecution
Orders
- The application dated 3rd July 2013 is allowed.
- The suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 81 OF 2007
STANLEY KIPKURUI MUTAI..................................................................PLAINTIFF
VERSUS
TEGAT TEA FACTORY CO. LTD...................................................1ST DEFENDANT
WILLIS ODHIAMBO-ZONAL MANAGER..................................2ND DEFENDANT
BENJAMIN K. KIRUI.....................................................................3RD DEFENDANT
ALFRED KOECH.............................................................................4TH DEFENDANT
KENYA TEA DEVELOPMENT AUTHORITY..................................5TH DEFENDANT
RULING
The Defendants' Motion dated 3rd July 2013 has been brought under the provisions of Order 17 Rule 2(1), (2) and (3), and Order 5 Rule 1 of the Civil Procedure Rules. They seek the following orders-
(a) that the Plaintiff be summoned to show cause why the suit should not be dismissed for want of prosecution;
(b) that in the event the Plaintiff fails to show sufficient cause, the court does dismiss the Plaintiff's suit with costs and
(c) that the costs of this application be provided for.
The application is based on the grounds that the Plaintiff has not taken any steps to prosecute this matter since it was last in court on 6/6/2007. That, the inordinate delay in prosecuting this matter delay has prejudiced the defendants.
The application is not opposed. Despite being served with the application, the Plaintiff did not file any documents in response.
Order 17 Rule 2(1) and (3) under which this application has been filed provide that-
“(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule (1).”
This suit was filed on 18th April 2007. Together with the Plaint, the Plaintiff filed an application seeking temporary injunction orders pending the hearing and determination of the suit. This application was subsequently abandoned with the consent of the parties on 6th June 2007, because according to the Plaintiff's Counsel, it had been overtaken by events. The Plaintiff's Counsel however indicated to the court that the Plaintiff wished to pursue the main suit and would be listing it for hearing. However, since that date, the Plaintiff has not taken any further step to prosecute the matter.
I am alive to the fact that a matter should be determined on its merit and the court should sparingly exercise its discretion to dismiss a case summarily.
This is one case that deserves to be dismissed for want of prosecution. The Plaintiff has clearly lost any interest in the suit. A period of three and a half years without any steps being taken to have the matter disposed of expeditiously is inordinate. It is further exacerbated by the fact that no excuse has been offered by the Plaintiff for his delay despite being duly served. The Defendants have been prejudiced by having a case pending and which the Plaintiff has shown no intention of having it concluded.
DETERMINATION:
Accordingly, the application dated 3rd July 3011 is allowed. This suit is hereby dismissed for want of prosecution.
There shall be no order as to costs.
Dated, Signed and Delivered at Nakuru this 17th day of February, 2015.
A. MSHILA
JUDGE