Jayantilal S. Shah & Builtech Limited v Nyaboke G. Onsongo,Jaquine Osoro t/a Vigilant Auctioneers & Kenya Commercial Bank Ltd [2014] KEHC 31 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL SUIT NO. 190 OF 2002

JAYANTILAL S.  SHAH….………..........................……… 1ST PLAINTIFF

BUILTECH LIMITED……….………............................…. 2ND PLAINTIFF

VERSUS

NYABOKE G. ONSONGO…………….......................…1ST DEFENDANT

JAQUINE OSORO T/A VIGILANT AUCTIONEERS …...2ND DEFENDANT

KENYA COMMERCIAL BANK LTD…...........................3RD DEFENDANT

RULING

The application dated 09/07/2014 seeks that the plaintiff's suit be dismissed for want of prosecution, and the plaintiff be ordered to bear the costs in any event.  This is on  grounds that, it  is over 11 years since the case was filed  in  court,  and neither  the  plaintiffs  nor  their  counsel  have  taken  any initiative  towards  prosecuting  the  case. Further, the 2nd plaintiff who was sued in his personal capacity passed on, in the year 2006, a fact which was made known to the plaintiff - this means the suit against the 2nd defendant has abated.

No response was filed, and the plaintiff’s counsel Mr. Mburu informed this court that he   has been unable to trace the plain tiff. A perusal of the  record shows that this case was filed   in    the year 2002, and  save  for   two   occasions  on 01/ 08/2005  when  it   was set down  for  hearing,  it  has generally  remained  dormant.  Even then, there was no hearing as one of the defence  counsel was bereaved.

The matter was next listed on 24/10/2005, but the plaintiff's counsel sought an adjournment as he   was engaged before the Court of Appeal in Nairobi. Since then no other steps were taken to have the proceed. This means that for the last nine years, the plaintiff’s interest in the matter had diminished. Twelve years is the sum total of this file’s life, with nothing constructive to show for   it. Indeed for  the defence counsel's own  submission, it is clear the  plaintiff has never even   made attempts to  get  in  touch or  even find  out the position  regarding  the   case.   The only    reasonable inference to be drawn is that the plaintiff has lost interest in the   matter.   I hold that the   application is merited and the suit filed herein by the plaintiff is dismissed with costs to be borne by the plaintiff.  The plaintiff shall also bear the costs of this application.

Dated this 7th day of October 2014 at Nakuru

H.A. OMONDI

JUDGE