Magdalina Nyaruai Murogo & Margaret Wanjiru Murui v Kenya Commercial Bank Limited [2015] KEHC 5193 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 862 OF 1996

MAGDALINA NYARUAI MUROGO.............................................PLAINTIFF

VERSUS

MARGARET WANJIRU MURUI

KENYA COMMERCIAL BANK LIMITED.............................DEFENDANTS

RULING

1. The 2nd Defendant herein sought the dismissal of this suit by a Notice of Motion dated  29th September, 2014. It is alleged that the Plaintiff has since 4th June, 2004 when the matter was last in court not taken to prosecute occasioning miscarriage of justice and prejudice to the 2nd Defendant. It was contended the 2nd Defendant's witnesses, if any may be found will find difficulty in recalling their testimonies due to prolonged lapse of time.

2. Despite service of this application, no response was put forth on behalf of the Plaintiff. At the hearing of the application, learned counsel for the 2nd Defendant Mr. Litoro relied on the grounds on the face of the application.

3 .I have taken due consideration of the deposition by Counsel for the 2nd Defendant and read the court record. This suit was filed way back on 4th April, 1996. True to the 2nd Defendant's words, the last activity in court in this matter before the filing of this application took place in the year 2004. The Plaintiff herein despite being served with this application has not bothered to respond thereto.

4. It is worth noting that the duty is majorly on the Plaintiff to ensure expeditious prosecution of a suit once it is filed.  I am fortified by the holding of Lord Denning in  Fitzpatrick v. Batger & Co. Ltd [1967] 2 ALL ER 657 citing his decision in Reggentine v. Beecholme Bakeries Ltd [1967] 111 Sol. Jo. 216 where he said as follows:-

“It is the duty of the Plaintiff’s advisers to get on with the case.  Public policy demands that the business of the Courts should be conducted with expedition … the delay is far beyond anything we can excuse.  This action has gone to sleep for nearly two years.  It should now be dismissed for want of prosecution.”

5. For the above reasons I make orders that this suit is hereby dismissed with costs to both Defendants for want of prosecution. Order accordingly.

Dated, Signed and Delivered in open court this 27th day of March,2015.

J. K. SERGON

JUDGE

In the presence of:

......................................for the Plaintiff.

......................................for the 1st Defendant.

......................................for the 2nd Defendant.