JAMES KIMATHI (t/a K & M ARCHITECTS) & 2 others v KENYA COMMERCIAL BANK LTD [2009] KEHC 1261 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAIROBI

MILIMANI COMMERCIAL AND ADMIRALTY DIVISION

Civil Case 64 of 2002

JAMES KIMATHI (t/aK & M ARCHITECTS) ……... 1ST PLAINTIFF

M.A. OORO & OTHERS ………………………………. 2ND PLAINTIFF

KISA & PARTNERS CONSULTING

ENGINEERS LTD. ……………………………………... 3RD PLAINTIFF

VERSUS

KENYA COMMERCIAL BANK LTD. ……………...….. DEFENDANT

R U L I N G

Notice of Motion dated 14/5/09 is brought under Order XVI Rule 5 (d), Order L Rule 1 and 3, Section 3A Civil Procedure Act, Cap.21 seeking the dismissal of suit by 3rd plaintiff for want of prosecution, on the ground that the 3rd plaintiff has failed to set down the suit for hearing since 24/4/2007.  And there is great delay causing the defendant prejudice.

The 1st and 2nd plaintiff have withdrawn their suits against the defendant.  The 3rd plaintiff claims special damages for Kshs.6,092,399/=.  The 3rd plaintiff has sworn an affidavit through the deponent Frashia M. Githinji, sworn on 2/6/2009 which opposes the application for dismissal in further affidavit by the applicant.  Exhibited are letters from 14/12/05 to 26/2/2008 on the subject of arbitration.  No instructions have been received yet.

I have noted the authorities relied upon by the parties.  However, my view is that there has been inordinate delay and there is no reasonable excuse advanced for such delay.  I therefore come to the conclusion that the 3rd plaintiff has lost interest in the suit and I allow the application and grant orders as prayed with costs.

Orders accordingly.

DATED, SIGNED and DELIVERED at Nairobi this 3rd day of November,  2009.

JOYCE N. KHAMINWA

JUDGE