Kipkurui Arap Langat v National Bank of Kenya [2009] KEHC 2412 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

Civil Case 66 of 2004

KIPKURUI ARAP LANGAT ………………………………PLAINTIFF/APPLICANT

VERSUS

NATIONAL BANK OF KENYA ……………………DEFENDANT/RESPONDENT

RULING

Application dated 28th May, 2008 seeking orders to dismiss this suitfor want of prosecution

I:  Procedure

1.   The application dated 28th May, 2008 seeks orders to dismiss the main suit herein filed by the Plaintiff/Respondent on 29th June, 2004 for want of prosecution.

2.   The said Plaintiff/Respondent having been served failed to attend Court on the day called out for hearing of this application.  The matter proceeded in his absence under order Ixb r 3(a)Civil Procedure Rules when this Court was satisfied that he had been duly served.

II:Background

3.   The Plaintiff/Respondent had entered into a contract with the Defendant/Applicant to borrow sums of moneys from the bank amounting to Kshs. 300,000/=. He defaulted in payment and the said bank wished to execute against the default of payment.  The Plaintiff filed this suit on the 29th June, 2004 and sought orders of injunction to restrain the Applicant/Defendant bank from executing on the sale of his security.

4.   Since 28th October, 2004 no action had been taken on this file. The Defendant/Applicant thereafter filed this current application seeking to dismiss this whole suit for want of prosecution.

III: Application /Opinion

5.   The law under Order XVI r 6Civil Procedure Rules requires that where no action to a suit has been taken for three years the Court may suo moto dismiss the suit without notice to any parties. Under order XVI r 1(2)Civil Procedure Rules the matter or suit is left pending for one year with no action the Court may issue a notice to a party then on day the matter is mentioned dismiss the suit.

6.   Under order XVI r 5Civil Procedure Rulesan Applicant may apply to Court after three months to set the suit for hearing or have the matter dismissed.

7.   In this application before me the Defendant has opted to apply to Court to dismiss the said suit for want of prosecution.  They do so after four to five years having now expired.

8.   I find that herein that the application has merits.  The same is allowed and this Court makes orders to dismiss this suit with costs to the Defendant/Applicant on grounds that the plaintiff has failed to prosecute this suit.

DATEDthis 18th day of March, 2009 atKERICHO

M.A. ANG’AWA

JUDGE

Advocates

I.O. Meroka advocate from M/S Meroka & Co. advocates instructed to hold brief for M/S Githiru & Co. Advocates for the Applicant/Defendant – present

N/A for N/A Koech J.K & Co. advocates for the Respondent/Plaintiff