[2014] KEHC 2865 (KLR)
The court found that the plaintiffs had taken no steps to prosecute the suit for over eleven years after the close of pleadings. The plaintiffs' advocates sought to cease acting and the plaintiffs collected their file, further evidencing lack of interest. The court held that such inordinate and unexplained delay was...
Source-derived case information.
- Citation
- [2014] KEHC 2865 (KLR)
- Parties
- Plaintiff: Thomas Lewanga Mwaingia; Plaintiff: Ronald Okiro Mtoto; Defendant: Kishore Nanji
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 12 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Lewanga Mwaingia
Plaintiff
Ronald Okiro Mtoto
Plaintiff
Kishore Nanji
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 prolonged inactivity by the plaintiffs.
- 2 Whether the plaintiffs or their advocates took any steps to prosecute the suit after pleadings closed.
Ratio Decidendi
The court found that the plaintiffs had taken no steps to prosecute the suit for over eleven years after the close of pleadings. The plaintiffs' advocates sought to cease acting and the plaintiffs collected their file, further evidencing lack of interest. The court held that such inordinate and unexplained delay was contrary to the duty to prosecute cases expeditiously and was prejudicial to the defendant. Relying on established authority, the court concluded that the suit should be dismissed for want of prosecution, as public policy demands timely resolution of litigation and the delay was far beyond what could be excused.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The suit is dismissed for want of prosecution.
- Costs of the suit and of the Notice of Motion dated 8th November 2013 are awarded to the defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 12 OF 2003
THOMAS LEWANGA MWAINGIA……………….……………. 1ST PLAINITFF
RONALD OKIRO MTOTO ………………..…..………………. 2ND PLAINTIFF
-VERSUS-
KISHORE NANJI ………………………………............................ DEFENDANT
RULING
Plaintiffs filed this case some eleven (11) years ago on 20th January 2003. Defendant filed his Defence on 13th May 2003. NO other pleadings were filed thereafter and accordingly pleadings closed fifteen (15) days after 13th May 2003. Plaintiffs took no action thereafter in this suit and the next document filed is a Notice of Motion application by Defendant seeking dismissal of this suit for want of prosecution. That Notice of Motion is dated 8th November 2013. It is the application under consideration.
The firm of Advocates, Tindika & Company Advocates, representing the Plaintiffs filed an application dated 24th January 2014 seeking leave of the Court to cease to act for the Plaintiffs. That application remained unprosecuted. I however did note that attached to the affidavit in support to that application is an acknowledgement signed by Plaintiffs indicating that they had collected their entire file from their Advocates Tindika & Co. Advocates.
The Notice of Motion under consideration was unopposed. The affidavit in support of that application sworn by Samir Inamdar deposed that the matters relating to this suit occurred in 1997 and in view of the years that the suit has remained unprosecuted fair trial cannot proceed.
It is clear that the Plaintiffs have lost interest in this suit. Moreso having taken their entire file from their Advocates they may well have decided not to prosecute the suit. I will just refer to the case-
“Fitzpatrick Vs Batger & Co. Ltd (1967)2 ALL ER 657 where Lord Denning, citing his decision in Reggentine Vs Beecholme Bakeries Ltd [1967]111 Sol. Jo. 216, said as follows-
‘It is the duty of the Plaintiff’s advisers to get on with the case. Public policy demands that the business of the Courts should be conducted with expedition …. the delay is far beyond anything we can excuse. This action has gone to sleep for nearly two years. It should now be dismissed for want of prosecution.’”
No doubt Plaintiffs and their Advocate did fail to deal with this suit expeditiously accordingly it is only right that the Defendant’s application be allowed. This suit is hereby dismissed for want of prosecution with costs of the suit and of Notice of Motion dated 8th November 2013 being awarded to the Defendant.
It is so ordered.
DATED and DELIVERED at MOMBASA this 25TH day of SEPTEMBER, 2014.
MARY KASANGO
JUDGE