Norris Kibe, Gibson Wachaga & Barbel Investments Limited v Exxim Enterprises Limited & Kenya Tea Development Agency Limited [2018] KEHC 1423 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL & TAX DIVISION

CIVIL CASE NO.24 OF 2014

NORRIS KIBE..........................................................................1ST PLAINTIFF

GIBSON WACHAGA………………………….............…….2ND PLAINTIFF

BARBEL INVESTMENTS LIMITED…………………….....3RD PLAINTIFF

-VERSUS-

EXXIM ENTERPRISES LIMITED.....................................1ST DEFENDANT

KENYA TEA DEVELOPMENT AGENCY LIMITED….2ND DEFENDANT

RULING

1. The three plaintiffs filed this claim on 22nd January 2014.  The 1st defendant filed its defence on 13th February, 2014, while the 2nd defendant filed its defence on 12th February 2014.  By end of February 2014 pleadings, in this matter, had closed.

2. By this court’s Ruling delivered on 11th November 2014 the court declined to enter judgment against the 2nd defendant as sought by the plaintiff’s application dated 17th May 2014.

3. The matter was thereafter fixed for case management conference (CMC) and was lastly in court on 13th March 2017 when the plaintiff’s learned counsel informed the court that the plaintiff had not complied with CMC.  No further dates were fixed by the plaintiff.

4. The 2nd defendant by Notice of Motion dated 28th August 2018 seeks dismissal of this suit for want of prosecution.  The application is brought under Order 17 Rule 2 (1) and (3) of the Civil Procedure Rules.

5. The application is based on the ground that the plaintiff has failed to take steps to set the suit for hearing since 13th March 2017.

6. Although the plaintiff’s advocate was served with a hearing notice for 3rd December 2018, the plaintiff’s advocate did not attend court and the application was therefore unopposed.

7. One can only therefore surmise that the plaintiff has lost interest in this matter which has remained unattended from March 2017.  That period of non activity is more than a year, thereby satisfying Order 17 of the Civil Procedure Rules.

8. Accordingly, the plaintiff’s suit is hereby dismissed for want of prosecution.  The costs of the suit and of the Notice of Motion dated 28th August, 2018 are awarded to the 2nd Defendant and shall be paid by the plaintiff.

DATED, SIGNED and DELIVERED at NAIROBI this6thday of December,2018.

MARY KASANGO

JUDGE

Ruling read and delivered in open court in the presence of:

Court Assistant....................Sophie

............................................ for the Plaintiffs

............................................ for the Defendants

MARY KASANGO

JUDGE