JOSHUA KIMAITA & another v JASON PHILIPUS & 7 others [2009] KEHC 32 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CIVIL SUIT NO.69 OF 2004

JOSHUA KIMAITA

SAMUEL CHEGE…………………………………………………………PLAINTIFFS

VERSUS

1. JASON PHILIPUS

2. INTERNATIONAL RESCUE COMMITTEE (IRC)

3. WORLD FOOD PROGRAMME (WFP)

4. GETELSHAFT FRO TECHNISSE

ZURSAMMEN – ARBERT (GTZ) & 4 OTHERS………………..DEFENDANTS

R U L I N G

By an application by way of Notice of Motion pursuant to the provisions of Order XV1 Rule 6 of the Civil Procedure Rules and sections 3 and 3A of the Civil Procedure Act, the applicant seeks orders:

1. That the plaintiffs’ suit be dismissed for want of prosecution.

2. That costs of this application and suit be provided for.

The application is based on the grounds:

1. It is over 3 ½ years since this suit was last in court over a ruling on an application to amend and which was dismissed.

2. Since 9th May 2005 the plaintiff has not taken any step to have the suit prosecuted.

3. The plaintiff has lost interest in the suit and is not keen on having it prosecuted.

4. The delay in setting the suit down for hearing is inordinate and unexplainable hence inexcusable.

5. The delay in prosecuting the suit is likely to prejudice the defendants.

6. It is trite law that litigation has to come to an end within a reasonable time.

7. It is just and fair in the circumstances of this case to dismiss it.

The application is predicated upon the annexed affidavit of P.N. Kiarie Ndarwa advocate sworn on the 19th day of November 2008.

On behalf of the applicant it was argued that the plaintiff instituted this suit against the defendant on or about 8th June 2004. The plaintiff’s application to amend the plaint was dismissed on 9th May 2005. That since then the plaintiff has not taken any steps to have the suit prosecuted. That it is now 3 ½ years since the suit was last in court.

In the premises, it was the applicant’s case that the plaintiffs have lost interest in the suit. That the delay in prosecuting the suit prejudices the 7th and 8th defendants who have since lost touch with their key witnesses.

Order XV1 Rule 5 provides;

“If within three months after-

(a)the close of pleadings; or

(b)(deleted by L.N. 36/00)

(c)the removal of the suit for the hearing

list, or

(d)the adjournment of the suit generally,

plaintiff, or the court of its own

motion on notice to the parties, does

not set down the suit for hearing, the

defendant may either set the suit down

for hearing or apply for its dismissal”.

I have scanned through the record. Having done so I have discovered that:

1. The reply to the 1st and 2nd defendants’ statement of defence dated 6th July 2004 was filed by Ms Hamilton Harrison & Mathews on 6th July 2007.

2. The reply to the 3rd defendant’s defence was not filed.

3. The reply to the 4th defendants defence dated 30th June 2004 was filed on 30th June 2004.

4. The reply to the 5th defendant’s defence dated 13th July 2004 was filed on 13th July 2004.

5. The reply to the sixth defendant’s statement of defence dated 11th July 2004 was filed on 14th July 2004.

6. The reply to the 7th and 8th defendants statement of defence was not filed.

Order VI Rule 11 of the Civil Procedure Code provides as follows:

“The pleadings in a suit shall be closed

fourteen days after service of the reply

to defence to counterclaim, or if neither

is served, 14 days after service of the

defence, notwithstanding that any

other order or request for particulars

has been made and not complied with”.

In the premises, it is clear to me that the pleadings closed in the year 2004. Since then the plaintiff has not taken any action to facilitate the fixing of the suit for hearing. As it were, the plaintiff went to sleep.

By reason of the foregoing, I am of the persuasion that this is a fit and proper case for dismissal of the suit for want of prosecution in terms of the provisions of Order XV1 Rule 5. Accordingly, the suit is dismissed with costs to 7th and 8th defendants only.

Dated and delivered at Kitale this 30TH  day of JUNE2009.

N.R.O. OMBIJA

JUDGE

Mr Kiarie for 7th & 8th defendant

N/A for respondent/plaintiff