[2000] KEHC 467 (KLR)
The court found that the plaintiff had failed to take any meaningful steps to prosecute the suit for over a year and had not complied with a consent order requiring amendment of the plaint to join the 2nd defendant. The court held that the delay was inordinate and unjustified, and that the plaintiff's conduct...
Source-derived case information.
- Citation
- [2000] KEHC 467 (KLR)
- Parties
- Plaintiff: Sylvester Githua Karanja; Defendant: Mae Properties Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 547 of 1995
- Procedural Posture
- Notice of Motion / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application allowed; suit dismissed for want of prosecution with costs
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Failure to Comply With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sylvester Githua Karanja
Plaintiff
Mae Properties Limited
Defendant
Procedural Posture
Notice of Motion / 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's failure to comply with a consent order to amend the plaint justifies dismissal of the suit.
- 3 Whether the continued existence of an interim order prejudices the defendants.
Ratio Decidendi
The court found that the plaintiff had failed to take any meaningful steps to prosecute the suit for over a year and had not complied with a consent order requiring amendment of the plaint to join the 2nd defendant. The court held that the delay was inordinate and unjustified, and that the plaintiff's conduct demonstrated a lack of interest in prosecuting the matter. The continued existence of an interim order restraining the defendant from registering a transfer was prejudicial. The court concluded that there was no reason to prolong the inconvenience and prejudice to the defendants, and therefore allowed the application, dismissing the suit for want of prosecution with costs.
Court Disposition
application allowed; suit dismissed for want of prosecution with costs
Orders
- The suit is dismissed for want of prosecution.
- The plaintiff shall pay the costs of the suit to the defendant.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
Sylvester Githua Karanja v Mae Properties Limited High Court of Kenya at Nairobi October 23, 2000 Milimani Commercial Courts T Mbaluto, Judge October 23, 2000 T Mbaluto, Judge delivered the following ruling
This application has been brought by way of a Notice of Motion under Order 16 rule 5 of the Civil Procedure Rules for the dismissal of the suit for want of prosecution.
The application is based on the grounds that since July 23, 1999, the plaintiff has not taken any steps to prosecute the suit and has also failed to comply with an order requiring him to amend the plaint.
The respondent opposes the application on the grounds that the suit involves considerable sums of money and the respondent stands to suffer considerable loss if the suit is dismissed; that the respondent is very interested in prosecuting the suit and will do so expeditiously; that it is not in the interests of justice to dismiss the suit and that the respondent is prepared to comply with the consent order made on May 5, 1999.
Having carefully considered the matter, I do not think that what the respondent has stated in response to the application really answers the issues raised in the application. The first issue is of delay. This suit was filed more than 5 years ago. Owing to the plaintiff’s inaction, it has not progressed beyond the plaint. Meanwhile the plaintiff has been sitting on an order which restrains the 1st defendant from registering a transfer in favour of the 2nd defendant. That interim order is clearly prejudicial to the defendants.
The second issue is the respondent’s failure to comply with the terms of a consent order. The order required the respondent to amend his plaint so that the 2nd defendant could be joined in the proceedings. Without the amendment, no progress can be made in the matter. Instead of doing the needful, the respondent has been moving from one advocate to another to the prejudice of all the other parties involved in this suit.
The last step taken in the matter prior to this application was the delivery of the ruling on July 16, 1999. That was almost one year before the filing of this application. Under Order 16 rule 5 of the Civil Procedure Rules:-
“If, within three months after:-
(a) the close of pleadings; or
(b) the removal of the suit from the hearing list; or
(c) the adjournment of the suit generally, the plaintiff, or the court of its own motion on notice to the parties, does not set down the suit for hearing, the defendant may either set the suit down for hearing or apply for its dismissal.”
The conduct of the plaintiff/respondent in this matter clearly shows that he is not interested in prosecuting this suit. There is therefore no reason for prolonging the inconvenience and prejudice occasioned to the defendants.The application is accordingly allowed and the suit dismissed with costs for want of prosecution.