[2004] KEHC 853 (KLR)
The court found that while the plaintiffs had been indolent in prosecuting the suit, the explanation provided for the delay—namely, the death of the 1st respondent—warranted the exercise of judicial discretion to grant a final opportunity to prosecute the suit. The court ordered that the plaintiffs must take action...
Source-derived case information.
- Citation
- [2004] KEHC 853 (KLR)
- Parties
- Plaintiff: Wairimu Ngatia; Plaintiff: Peterson Wambucha Ngatia; Plaintiff: George Githinji Ngatia; Defendant: Ndirangu s/o Karuu; Defendant: Elizabeth Wairimu Ndirangu
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 57 of 1997
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined; plaintiffs given final opportunity to prosecute suit within three months; costs awarded to defendants.
- Judges
- GG Okwengu
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wairimu Ngatia
Plaintiff
Peterson Wambucha Ngatia
Plaintiff
George Githinji Ngatia
Plaintiff
Ndirangu s/o Karuu
Defendant
Elizabeth Wairimu Ndirangu
Defendant
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 inordinate delay by the plaintiffs.
- 2 Whether the plaintiffs should be granted a final opportunity to prosecute the suit.
Ratio Decidendi
The court found that while the plaintiffs had been indolent in prosecuting the suit, the explanation provided for the delay—namely, the death of the 1st respondent—warranted the exercise of judicial discretion to grant a final opportunity to prosecute the suit. The court ordered that the plaintiffs must take action to prosecute the suit within three months from the date of the ruling, failing which the defendants would be at liberty to re-apply for dismissal for want of prosecution. The court also ordered the plaintiffs to pay the costs of the application to the defendants.
Court Disposition
Application for dismissal for want of prosecution declined; plaintiffs given final opportunity to prosecute suit within three months; costs awarded to defendants.
Orders
- Plaintiffs to take action to prosecute the suit within three months from the date of the ruling.
- Defendants at liberty to re-apply for dismissal if plaintiffs fail to prosecute within three months.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
HIGH COURT CIVIL CASE NO. 57 OF 1997
1. WAIRIMU NGATIA )
2. PETERSON WAMBUCHA NGATIA )
3. GEORGE GITHINJI NGATIA ) …………………… PLAINTIFFS
VERSUS
1. NDIRANGU s/o KARUU )
2. ELIZABETH WAIRIMU NDIRANGU ) ………………… DEFENDANTS
R U L I N G
Ndirangu s/o Karuu and Elizabeth Wairimu Ndirangu s/o Karuu (hereinafter referred to as the Defendants/Applicants) seek to have the suit filed against them by Wairimu Ngatia, Peterson Wambucha Ngatia and George Githinji Ngatia (hereinafter referred to as 1st, 2nd and 3rd Respondents respectively) dismissed for want of prosecution. It is the Plaintiff’s contention that the Respondents have taken no action to prosecute this suit since 1997.
The 2nd Respondent has sworn a replying affidavit in which he explains that they are interested in pursuing the suit but that they were held back by the death of 1st Respondent who is the mother of 2nd and 3rd Respondent and that given an opportunity they would prosecute the suit.
There is no doubt that the Respondents have been indolent in prosecuting this suit. I will however now give them a final opportunity to prosecute this suit and order that the Respondent take action to prosecution this suit within the next 3 months from the date hereof failing which the Applicant will be at liberty to re-apply for dismissal of the suit for want of prosecution.
The Respondents shall pay costs of this application to the Applicant.
Dated signed and delivered this 12 th day of November 2004.
H. M. OKWENGU
JUDGE