[2015] KEHC 4034 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit since December 2012 and had failed to provide a valid reason for the delay. The plaintiff's assertion that the loan was fully paid and the title documents returned negated any ongoing dispute requiring adjudication. Retaining the suit...
Source-derived case information.
- Citation
- [2015] KEHC 4034 (KLR)
- Parties
- Plaintiff: Theresa Stephen Kiunga; Defendant: Savings & Loan Kenya Ltd; Defendant: Kenya Commercial Bank Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 324 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed with costs to the defendants
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Overriding Objective, Joint Ownership, Charges on Land, Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Theresa Stephen Kiunga
Plaintiff
Savings & Loan Kenya Ltd
Defendant
Kenya Commercial Bank Ltd
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 under the Civil Procedure Act.
- 2 Whether the plaintiff has provided sufficient reason for the delay in prosecuting the suit.
- 3 Whether retaining the suit on record would violate the overriding objective and Article 159(2)(b) of the Constitution.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit since December 2012 and had failed to provide a valid reason for the delay. The plaintiff's assertion that the loan was fully paid and the title documents returned negated any ongoing dispute requiring adjudication. Retaining the suit on record would contravene the overriding objective of the Civil Procedure Act and Article 159(2)(b) of the Constitution, which mandate expeditious and affordable resolution of civil disputes. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution and awarded costs to the defendants.
Court Disposition
suit dismissed with costs to the defendants
Orders
- The suit is hereby dismissed for want of prosecution.
- The costs of the suit and the Notice of Motion are awarded to the defendants.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL SUIT NO. 324 OF 2010
THERESA STEPHEN KIUNGA……………..……….PLAINTIFF
VERSUS
SAVINGS & LOAN KENYA LTD………….…..1ST DEFENDANT
KENYA COMMERCIAL BANK LTD……….…2ND DEFENDANT
R U L I N G
1. From the pleadings and documents in this matter it is apparent that Teresa Stephen Kiunga the plaintiff and Stephen Michuki Kiunga are co-owners of Parcel No. C.R12723and sub-division No.2032 original CR 16768. The plaintiff acknowledges that she and her co-owner jointly executed a charge and further chare over that property in favour of the defendant. She however pleaded that the defendants permitted her co-owner to further charge the property without her knowledge or consent. She sought by her prayer in the plaint a declaration that the said charge was illegal and unlawful.
2. This suit has been pending up-to-date. The defendants have filed a Notice of Motion dated 29th January 2014 which is for dismissal of this suit for want of prosecution.
3. The plaint herein was filed on 10th September 2010. The court delivered a Ruling on 29th July 2011 granting plaintiff an injunction restraining the defendants from exercising their statutory of sale over the charged property.
4. The matter was last in court on 18th December 2012 for full hearing but was adjourned in the absence of the parties or their advocates. Plaintiff has not since then taken any step toward fixing this case for hearing.
5. The plaintiff by her replying affidavit deponed that the defendants had given her an undertaking that the charged property would not be sold and had returned to her the title documents of the property. Indeed she stated that the loan, in respect to which the further charge was created had been fully paid. That was the reason the plaintiff gave for not fixing the case for hearing.
6. Having stated so it is un clear why the plaintiff would say in that affidavit that this suit should not be dismissed in order to enable parties negotiate settlement. Plaintiff in so stating failed to say what the negotiations would be directed towards, since the defendants have returned the title documents to her and the loan, according to her is fully paid. To continue to retain this suit on record would be contrary to the provisions of overriding objective of the Civil Procedure Act which requires that there be expeditious and affordable resolution of Civil Dispute. Also the provisions of Article 159 (2) (b) of the Constitution of Kenya would be violated because justice will be delayed.
7. In the end and because of the above observation the Notice of Motion dated 29th January 2014 is granted to the extent that this suit is hereby dismissed with costs to the defendants. The costs of the Notice of Motion are awarded to the defendants.
So ordered.
Dated and delivered at Mombasa this 2nd day of July 2015.
MARY KASANGO
JUDGE
2. 7.2015
Coram
Before Justice Mary Kasango
C/Assistant- Kavuku
For the plaintiff:
For the defendants:
Court
Ruling delivered in their presence/absence inopne court.
MARY KASANGO
JUDGE