[2014] KEHC 1189 (KLR)
The court found that the plaintiffs had not taken any step to prosecute the suit for over five years since the close of pleadings. The defendants had properly served the plaintiffs with the application for dismissal, and there was no response or cause shown by the plaintiffs. The court held that the plaintiffs had...
Source-derived case information.
- Citation
- [2014] KEHC 1189 (KLR)
- Parties
- Plaintiff: Zedekia Kiprop Bundotich & Two Others; Defendant: Nation Media Group Limited & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 212 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendants
- Judges
- A Mbogholi-Msagha
- 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
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Parties
Zedekia Kiprop Bundotich & Two Others
Plaintiff
Nation Media Group Limited & Another
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 inaction by the plaintiffs.
- 2 Whether the plaintiffs have lost interest in prosecuting the suit.
- 3 Whether the defendants are entitled to costs of the application and the suit.
Ratio Decidendi
The court found that the plaintiffs had not taken any step to prosecute the suit for over five years since the close of pleadings. The defendants had properly served the plaintiffs with the application for dismissal, and there was no response or cause shown by the plaintiffs. The court held that the plaintiffs had lost interest in the matter, and in accordance with Order 17 Rule 2 of the Civil Procedure Rules, the suit was dismissed for want of prosecution. The court further ordered that the defendants are entitled to the costs of both the application and the main suit.
Court Disposition
suit dismissed for want of prosecution with costs to the defendants
Orders
- The suit is dismissed for want of prosecution.
- The defendants are awarded costs of the application and the main suit.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 212 OF 2009
ZEDEKIA KIPROP BUNDOTICH & TWO OTHERS ………PLAINTIFFS
VERSUS
NATION MEDIA GROUP LIMITED & ANOTHER ………DEFENDANTS
RULING
This suit was filed on 17th April, 2009. Upon service, the defendants entered appearance on 4th June, 2009 followed by a defence filed on 19th June, 2009. The plaintiffs filed a reply to the said defence on 14th July, 2009. The record before me shows that no other step has been taken to facilitate the determination of this suit.
On 29th May, 2014 the defendants filed an applicant under Order 17 Rule 2(3), Order 51 Rule 1 of the Civil Procedure Rules and Section 1A, 1B and 3A of the Civil Procedure Act for orders that the plaintiffs’ suit against the defendants be dismissed for want of prosecution and the costs of the application and the suit be awarded to the defendants.
The grounds upon which the said application was made are that the plaintiffs’ advocate has never and or failed to set down the suit for hearing since the close of the pleadings; the plaintiffs have lost interest in prosecuting the suit, and that in the interest of justice this application should be allowed. The application is supported by an affidavit sworn by the advocate for the defendants.
Order 17 Rule 2 (1) of the Rules provides that, in any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed. If cause is not shown to its satisfaction the court may dismiss the suit. Order 17 Rule 2(3) provides that any party to the suit may apply for its dismissal as provided in sub- rule 1.
The defendants herein gave notice and served the plaintiffs’ counsel with the application herein. An affidavit of service sworn on 28th October, 2014 has been filed. I am satisfied that the plaintiffs have not taken any step from the time they filed a reply to the defence on 14th July, 2009. It is over 5 years now since the last step was taken and there is no reason why this suit should be sustained.
It is clear the plaintiffs have lost interest in the matter. Accordingly, this application is allowed, the consequence of which is that the suit is dismissed with costs both of the application and the main suit.
Orders accordingly.
Dated, signed and delivered at Nairobi this 26th day of November, 2014.
A. MBOGHOLI MSAGHA
JUDGE