[2021] KEHC 13535 (KLR)
The court found that the plaintiff had failed to take any substantive step to prosecute the suit since the ruling delivered on 18th June 2018. The actions cited by the plaintiff—requesting proceedings and changing advocates—were insufficient to demonstrate active prosecution. The prolonged delay of nearly two and a...
Source-derived case information.
- Citation
- [2021] KEHC 13535 (KLR)
- Parties
- Plaintiff: Wilson Commernder Madasia; Defendant: KTDA Management Services Limited; Defendant: Mudete Tea Factory Limited; Defendant: Javan M. Mukavale
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 5 of 2021
- Procedural Posture
- Civil Suit / Ruling on Motion to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- DN Musyoka
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Wilson Commernder Madasia
Plaintiff
KTDA Management Services Limited
Defendant
Mudete Tea Factory Limited
Defendant
Javan M. Mukavale
Defendant
Procedural Posture
Civil Suit / Ruling on Motion to Dismiss 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 steps taken by the plaintiff constituted sufficient prosecution of the suit.
Ratio Decidendi
The court found that the plaintiff had failed to take any substantive step to prosecute the suit since the ruling delivered on 18th June 2018. The actions cited by the plaintiff—requesting proceedings and changing advocates—were insufficient to demonstrate active prosecution. The prolonged delay of nearly two and a half years without meaningful action indicated that the plaintiff had lost interest in the matter. The court held that such inaction justified dismissal for want of prosecution under the Civil Procedure Rules. Accordingly, the motion by the 3rd defendant was allowed, and the suit was dismissed with costs to the 3rd defendant.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is hereby dismissed for want of prosecution.
- The 3rd defendant shall have the costs of the suit.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL SUIT NO. 5 OF 2021
WILSON COMMERNDER MADASIA..............................PLAINTIFF
VERSUS
KTDA MANAGEMENT SERVICES LIMITED.......1ST DEFENDANT
MUDETE TEA FACTORY LIMITED.......................2ND DEFENDANT
JAVAN M. MUKAVALE...............................................3RD DEFENDANT
RULING
1. The Motion, dated 7th September 2020, by the 3rd defendant, seeks dismissal of the instant suit for want of prosecution. It is averred that since 21st June 2018, when a ruling was delivered herein, no action had been taken by the plaintiff hence the Motion..
2. The defendant, by way of response, says that he instructed his Advocates to file appeal. The said Advocates then wrote a letter to court, asking for proceedings. The letter is dated 22nd June 2018. He says that that was the last time he heard from them. He then instructed another firm of Advocates, who placed a notice of change of Advocates in court on 16th October 2019, but still took no step.
3. The record before me is clear, that the last substantive step in this matter was delivery of the ruling on 18th June 2018. Since then no step has been taken to advance the matter. Requesting for proceedings, which request is not followed up thereafter, and filing a notice of change of Advocates and then going back to sleep are not adequate. The plaintiff has clearly lost interest in the matter. Between 18 June 2018 and 12th October 2020, when the Motion was lodged in court, is some twenty-four months, or nearly two years and a half. A party keen on prosecuting their suit ought to have taken some decisive step to move the case forward.
4. There is a clear case for want of prosecution. Consequently, I am persuaded that there is merit in the Motion, dated 7th September 2020, and I allow the same. The suit is hereby dismissed. The 3rd defendant shall have the costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS ……………26th ……..…..……. DAY OF …………NOVEMBER……………….………., 2021
W. MUSYOKA
JUDGE