[2013] KEHC 2389 (KLR)
The court found that the plaintiff had not taken any steps to prosecute the suit for over three years since the close of pleadings. The court was satisfied that the plaintiff was properly served with the application for dismissal, as evidenced by the affidavit of service. The absence of any response or attendance by...
Source-derived case information.
- Citation
- [2013] KEHC 2389 (KLR)
- Parties
- Plaintiff: Toyo Moyo Co. Ltd; Defendant: Badrudin Hussein Haji Issa (sued as legal representative of the Estate of the Late Hussein Haji Issa); Defendant: Paul Ole Yiale t/a Nasioki Auctioneers
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 204 of 2009
- 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/applicant
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Toyo Moyo Co. Ltd
Plaintiff
Badrudin Hussein Haji Issa (sued as legal representative of the Estate of the Late Hussein Haji Issa)
Defendant
Paul Ole Yiale t/a Nasioki Auctioneers
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 inaction by the plaintiff.
- 2 Whether the plaintiff was properly served with the application for dismissal.
Ratio Decidendi
The court found that the plaintiff had not taken any steps to prosecute the suit for over three years since the close of pleadings. The court was satisfied that the plaintiff was properly served with the application for dismissal, as evidenced by the affidavit of service. The absence of any response or attendance by the plaintiff or its counsel led the court to conclude that the plaintiff had lost interest in the matter. Consequently, the court exercised its discretion to dismiss the suit for want of prosecution, in accordance with the Civil Procedure Rules, and awarded costs to the defendant/applicant.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant/applicant
Orders
- The application dated 5/7/2011 is allowed.
- The suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 204 OF 2009
TOYO MOYO CO. LTD……...…….PLAINTIFF/RESPONDENT
VERSUS
BADRUDIN HUSSEIN HAJI ISSA (sued
as legal representative of the Estate of the
Late Hussein Haji Issa)………..…….1ST DEFENDANT/RESPONDENT
PAUL OLE YIALE t/a
NASIOKI AUCTIONEERS…….2ND DEFENDANT/APPLICANT
RULING
The Notice of Motion dated 5/7/2011, is brought pursuant to Order 50 Rule 1 and Order 17 Rule 2(1)(3) of the Civil Procedure Rules. The defendant/applicant prays that the suit be dismissed for want of prosecution and costs be awarded to the applicant.
The plaintiff/respondent was not represented nor was there any reply to the application. The court was satisfied that the plaintiff/respondent was served with the instant application because an affidavit of service dated 23/5/2013, was sworn by George Gembe, a process server, who confirmed to having served the secretary to the respondent’s counsel Kiptoo and Company Advocates on 2/5/2013.
This suit was filed way back on 20/7/2009. The last pleading was filed by Kiptoo & Company Advocates way back on 9/2/2010 and list of agreed issues on 2/6/2013. Since then, the plaintiffs and the advocates have not done anything towards prosecution of this suit. It is now three years since the pleadings closed. Having failed to attend court or file a reply, the only presumption the court can draw is that the plaintiff is not interested in the prosecution of this case. For the above reasons, I allow the application dated 5/7/2011, dismiss the suit for want of prosecution with costs to the defendant/applicant.
DATED and DELIVERED this 12th day of June, 2013.
R.P.V. WENDOH
JUDGE
PRESENT:
N/A for the plaintiff/respondent
N/A for the 1st defendant/respondent
N/A for the 2nd defendant/applicant
Kennedy – Court Clerk