[2009] KEHC 1244 (KLR)
The court found that the plaintiff had not taken any substantive steps to set the suit down for hearing on its merits since its filing in 1999. The record showed that only interlocutory applications had been pursued, and no decree existed in favour of the plaintiff attaching to the money held by the garnishees. The...
Source-derived case information.
- Citation
- [2009] KEHC 1244 (KLR)
- Parties
- Plaintiff: Stephen Owino; Defendant: Harrison Mbugua t/a Mantradenterprises; Defendant: Lydia Achieng Abura; Defendant: World Vision; Garnishee: Mendo & Company Advocates; Garnishee: Hamilton Harrison & Mathew Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 258 of 1999
- 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, Interlocutory Applications, Execution of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Owino
Plaintiff
Harrison Mbugua t/a Mantradenterprises
Defendant
Lydia Achieng Abura
Defendant
World Vision
Defendant
Mendo & Company Advocates
Garnishee
Hamilton Harrison & Mathew Advocates
Garnishee
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 inaction by the plaintiff.
- 2 Whether the plaintiff has taken any substantive steps to set the case down for hearing on merits since filing.
- 3 Whether the suit is at the stage of execution or still pending hearing on merits.
Ratio Decidendi
The court found that the plaintiff had not taken any substantive steps to set the suit down for hearing on its merits since its filing in 1999. The record showed that only interlocutory applications had been pursued, and no decree existed in favour of the plaintiff attaching to the money held by the garnishees. The court rejected the plaintiff's contention that the suit was finalized and at the execution stage, holding that the suit had never been heard on merit. Consequently, the court exercised its discretion to dismiss the suit for want of prosecution, as the delay was inordinate and unjustified, and the interests of justice required finality.
Court Disposition
suit dismissed for want of prosecution with costs to the applicant
Orders
- The application dated 26/6/2009 is allowed.
- The suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI COMMERCIAL AND ADMIRALTY DIVISION
Civil Case 258 of 1999
STEPHEN OWINO…………….………...…………….PLAINTIFF
VERSUS
HARRISON MBUGUA T/A
MANTRADENTERPRISES………………………….1ST DEFENDANT
LYDIAACHIENG ABURA ………………………….2ND DEFENDANT
WORLD VISION………………………………………3RD DEFENDANT
MENDO & COMPANY ADVOCATES………………1ST GARNISHEE
HAMILTON HARRISON & MATHEW ADV……… 2ND GARNISHEE
R U L I N G
Application dated 26/6/2009 is brought under Order XVI rule 5 ( c)and (d), Order L. rule 1 and Section 3A of Civil Procedure Act.
The applicant is first defendant. The applicant seeks order for dismissal of this suit for want of prosecution and for costs on the ground that the respondent has not taken any step to have this matter disposed since 28/11/2008. That the first defendant is kept in the darkness and out of its money due to delay on the part of plaintiff.
The application is supported by affidavit of Job Mwangi Thiga an advocate acting for first defendant. He swears that this suit was file don 8/3/1999. That various orders were made by this court regarding payment of money to the plaintiff. Then on 18/10/2005 the court (Waweru J) ordered some money he paid to the first Garnishee Kshs.403,652/= and Kshs.1,398,212. 44 be paid to second Garnishee. Thereafter court (Ransley J) ordered that an inquiry be carried out to ascertain the liquidated sum ordered to be made. However the said Judge ordered the second garnishee “continue to retain the sums in their client account due to the first defendant in an interest earning account…….”There was an attempt to review Judge Ransley order but the application was rejected by the court (Lesiit J) on 11/5/2007. It was sworn that from 28/11/2008 no action has taken place. On that date the plaintiff sought committal order but the same was rejectedbycourt(Kihara J) “Saying, World Vision, 3rd defendant was ordered to pay unspecified amount of money. There was no decree passed against World Vision which it can be said to have failed to satisfy. The plaintiff has taken no steps since 8/3/1999 to set the case down for hearing on merits. Instead he had continued to pursue interlocutory applications.”
Upon perusing the record and the various orders made by court it is clear the suit has never been heard on merit. There is no decree in favour attaching to the money held by the Garnishee since March, 1999.
In the circumstances I find that the plaintiff contention that the suit is finalized and that it is at the stage of execution cannot be sustained. I allow the application dated on 26/6/2009 and grant orders as prayed with costs to the applicant of this suit and the application.
Orders accordingly.
Dated, Signed and Delivered at Nairobi this 2nd Day of November, 2009.
JOYCE N. KHAMINWA
JUDGE