FELIX OCHIENG, SAMUEL CHONE MATANO & YUSUF K. ORLOOH v PAUL IMBADIKU CHABEDA & RUTH HARRIET CHABEDA [2010] KEHC 1784 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 588 of 2006

FELIX OCHIENG ………………......…………………….. 1ST PLAINTIFF

SAMUEL CHONE MATANO ………........……………….. 2ND PLAINTIFF

YUSUF K. ORLOOH ……………………… 3RD PLAINTIFF

VERSUS

PAUL IMBADIKU CHABEDA …………...………...…. 1ST DEFENDANT

RUTH HARRIET CHABEDA ………………...…….… 2ND DEFENDANT

R U L I N G

By this application, the Defendants seek an order that this suit be dismissed for want of prosecution.

The application is brought by a notice of motion dated 22nd December, 2009, pursuant to Order XVI Rule 5 (d) of the Civil Procedure Rules and Section 3 A of the Civil Procedure Act.It is supported by the annexed affidavit of Paul Imbandiku Chabeda, the 1st Defendant herein, and is based on the grounds that this suit was last in Court on 31st July, 2007, when a ruling was delivered by Hon. Justice Khamoni.Since that date, the Plaintiffs have not set the case down for hearing and have, instead, demonstrated a lack of interest in pursuing their claim.It is therefore in the interests of justice that the suit be dismissed as prayed.

The record shows that the Plaintiffs in this suit were served on 24th March, 2010, and that the application was coming up for hearing on 12th June, 2010. The Plaintiffs have filed neither a replying affidavit, nor grounds of opposition, and to crown it, they did not attend Court for the hearing of the application in spite of having been served in sufficient time to do so.This demonstrates a clear apathy towards this suit and the Plaintiffs appear to have lost any interest in prosecuting it.

For the aforegoing reasons, the application is merited and this suit is accordingly dismissed with costs as prayed.The Plaintiffs will also bear the costs of this application.

Orders accordingly.

Dated and delivered atNairobithis 1st day of July, 2010.

L. NJAGI

JUDGE