1. For determination is the Defendant’s Notice of Motion application dated 22/3/2024 filed under Section 1A, 1B, and 3A of the Civil Procedure Act 2010 and Order I 7 Rule 2(3) and Order 51(1) of the Civil Procedure Rules 2010 and as amended in 2020.
2. The Defendant sought to have this suit dismissed for want of prosecution. The basis of the application was that this matter was last in court on 17/3/2023 for a ruling in respect of the Plaintiff’s application dated 6/5/2021 and the Defendant’s notice of preliminary objection dated 18/6/2021 and that since then, the Plaintiff has made no attempts whatsoever to set down this suit for hearing in the past twelve (12) months.
3. The Defendant argued that the Plaintiff’s failure to take any step to prosecute the suit or take any directions to proceed with the hearing of the suit since 17/3/2023 without any just or plausible explanation is sufficient reason to warrant this suit being dismissed for want of prosecution.
4. The Plaintiff opposed this application through a replying affidavit sworn on 27/7/2024 by Daniel Kabui Theuri, the Plaintiff’s advocate.
5. Mr. Theuri averred that his capacity to prosecute this matter was compromised due to personal challenges, to wit, his spouse was diagnosed with cancer in early May 2023, and that he delegated the conduct of this matter to his associate, who did not diligently take over the matter leading to the present application.
6. He asserted that the failure to have this matter prosecuted for over 12 months was not intentional and that dismissing this suit would greatly prejudice his client.
7. It was argued further that the Defendant would not suffer any prejudice if the matter is set down for hearing, as the court will make a determination on the matter based on the merits of each of the parties’ cases, and that an award of costs would be a sufficient restitution.
8. The Application was canvassed by way of written submissions. The Applicant’s submissions is dated 8/11/2024, whilst that of the Respondent is dated 7/3/2025.
Analysis and determination:
9. I have considered the Application, the Plaintiff’s replying affidavit filed herein, and the parties' submissions in support of their respective positions. I note that the only issue for determination is if the Applicants have made out a case for the suit to be dismissed for want of prosecution.
10. The law on dismissal of suits for want or prosecution is set out under Order 17 Rule 2 of the Civil Procedure Rules which provides that: -
“(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
(4) The court may dismiss the suit for non-compliance with any direction given under this Order.
(5) A suit stands dismissed after two years where no step has been undertaken.
(6) A party may apply to court after dismissal of a suit under this Order.
11. The principles governing applications for dismissal of suits for want of prosecution have been laid down in several cases, including that of ARGAN WEKESA OKUMU VS DIMA COLLEGE LIMITED 2 OTHERS [2015]e KLR, where Mabeya J. held as follows;
“...The principles governing applications for want of prosecution are well settled and have been established by a long line of authorities. The Applicant must show that the delay complained of is inordinate, that the inordinate delay inexcusable and that the Defendant is likely to be prejudiced by such delay. As such the 3rd Defendant in this case must meet the burden of proof in seeking the dismissal of the Plaintiff’s case for want of prosecution, see the case of Ivita–vs-Kyumbu (1984) KLR 441. Further to this, the decision of whether or not to dismiss a suit is discretionary and this Court must exercise such discretion judiciously. Additionally, each case must be decided on its own facts keeping in mind that a court should strive to sustain a suit where possible rather than prematurely terminating the same.”
12. The power of a court in dismissal of a suit for want of prosecution under Order 17 of the Civil Procedure Rules is discretionary. I agree with the sentiments of Aburili J in Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium vs MD Popat and others & another (2016) eKLR, where the Court stated as follows:-
“Nonetheless, Article 159 of the Constitution and Order 17 Rule 2(3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay.”
13. The burden is therefore on the Applicant to prove that there was inordinate delay by the Respondent in prosecuting the suit, that the delay is inexcusable, and that the Applicant is likely to suffer prejudice due to the delay.
14. In the present case, the Applicant/Respondent stated that the suit was filed in court on 30/3/2021 along with a notice of motion dated 6/5/2021. The ruling in respect of the said application was rendered on 17/3/2023. Since then, the Plaintiff has not moved the court to prosecute the suit.
15. The Plaintiff’s Advocate, in response to the application, attributed the delay in having the suit prosecuted to sickness on the part of his spouse. The Advocate deponed that his spouse was indisposed from early May 2023 and that his associate, to whom he delegated the conduct of the matter, unfortunately did not diligently take conduct of the matter.
16. From the above, it is not in dispute that the Plaintiff did not take any action in prosecuting its suit from 17/3/2023 and has only been woken from slumber when the present application dated 22nd March 2024 was filed. This obviously is a period of over one year since the matter was last in Court.
17. While I empathize with the reasons adduced by the Plaintiff’s advocate for the delay, it is instructive to note that no evidence has been tendered to prove the same. The reasons for the delay are therefore not ascertainable by the court.
18. Be that as it may, I am of the view that dismissal of a suit ought to be a measure of last resort, and the court is inclined to sustain a suit where possible. I believe that the Plaintiff would suffer immense prejudice if the suit were to be terminated at this stage. In any case, when this suit proceeds to hearing, both parties will have an opportunity to ventilate their cases before a final determination is rendered.
19. Having considered the above factors, I chose to exercise my discretion in favour of having this suit sustained. Consequently, the present application is dismissed, but with no order as to costs.
20. The Respondent is hereby directed to take steps and ensure the suit is set down for hearing within 30 days from today’s date; failure to which the suit shall automatically stand dismissed.
21. It so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
5TH DAY OF JUNE, 2025
ADO MOSES
JUDGE
In the presence of:
Moses – C/A
Ms/Tuwei…………..for the Def/Applicant
.N/A…………….......for the Respondent
2. The Defendant sought to have this suit dismissed for want of prosecution. The basis of the application was that this matter was last in court on 17/3/2023 for a ruling in respect of the Plaintiff’s application dated 6/5/2021 and the Defendant’s notice of preliminary objection dated 18/6/2021 and that since then, the Plaintiff has made no attempts whatsoever to set down this suit for hearing in the past twelve (12) months.
3. The Defendant argued that the Plaintiff’s failure to take any step to prosecute the suit or take any directions to proceed with the hearing of the suit since 17/3/2023 without any just or plausible explanation is sufficient reason to warrant this suit being dismissed for want of prosecution.
4. The Plaintiff opposed this application through a replying affidavit sworn on 27/7/2024 by Daniel Kabui Theuri, the Plaintiff’s advocate.
5. Mr. Theuri averred that his capacity to prosecute this matter was compromised due to personal challenges, to wit, his spouse was diagnosed with cancer in early May 2023, and that he delegated the conduct of this matter to his associate, who did not diligently take over the matter leading to the present application.
6. He asserted that the failure to have this matter prosecuted for over 12 months was not intentional and that dismissing this suit would greatly prejudice his client.
7. It was argued further that the Defendant would not suffer any prejudice if the matter is set down for hearing, as the court will make a determination on the matter based on the merits of each of the parties’ cases, and that an award of costs would be a sufficient restitution.
8. The Application was canvassed by way of written submissions. The Applicant’s submissions is dated 8/11/2024, whilst that of the Respondent is dated 7/3/2025.
Analysis and determination:
9. I have considered the Application, the Plaintiff’s replying affidavit filed herein, and the parties' submissions in support of their respective positions. I note that the only issue for determination is if the Applicants have made out a case for the suit to be dismissed for want of prosecution.
10. The law on dismissal of suits for want or prosecution is set out under Order 17 Rule 2 of the Civil Procedure Rules which provides that: -
“(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
(4) The court may dismiss the suit for non-compliance with any direction given under this Order.
(5) A suit stands dismissed after two years where no step has been undertaken.
(6) A party may apply to court after dismissal of a suit under this Order.
11. The principles governing applications for dismissal of suits for want of prosecution have been laid down in several cases, including that of ARGAN WEKESA OKUMU VS DIMA COLLEGE LIMITED 2 OTHERS [2015]e KLR, where Mabeya J. held as follows;
“...The principles governing applications for want of prosecution are well settled and have been established by a long line of authorities. The Applicant must show that the delay complained of is inordinate, that the inordinate delay inexcusable and that the Defendant is likely to be prejudiced by such delay. As such the 3rd Defendant in this case must meet the burden of proof in seeking the dismissal of the Plaintiff’s case for want of prosecution, see the case of Ivita–vs-Kyumbu (1984) KLR 441. Further to this, the decision of whether or not to dismiss a suit is discretionary and this Court must exercise such discretion judiciously. Additionally, each case must be decided on its own facts keeping in mind that a court should strive to sustain a suit where possible rather than prematurely terminating the same.”
12. The power of a court in dismissal of a suit for want of prosecution under Order 17 of the Civil Procedure Rules is discretionary. I agree with the sentiments of Aburili J in Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium vs MD Popat and others & another (2016) eKLR, where the Court stated as follows:-
“Nonetheless, Article 159 of the Constitution and Order 17 Rule 2(3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay.”
13. The burden is therefore on the Applicant to prove that there was inordinate delay by the Respondent in prosecuting the suit, that the delay is inexcusable, and that the Applicant is likely to suffer prejudice due to the delay.
14. In the present case, the Applicant/Respondent stated that the suit was filed in court on 30/3/2021 along with a notice of motion dated 6/5/2021. The ruling in respect of the said application was rendered on 17/3/2023. Since then, the Plaintiff has not moved the court to prosecute the suit.
15. The Plaintiff’s Advocate, in response to the application, attributed the delay in having the suit prosecuted to sickness on the part of his spouse. The Advocate deponed that his spouse was indisposed from early May 2023 and that his associate, to whom he delegated the conduct of the matter, unfortunately did not diligently take conduct of the matter.
16. From the above, it is not in dispute that the Plaintiff did not take any action in prosecuting its suit from 17/3/2023 and has only been woken from slumber when the present application dated 22nd March 2024 was filed. This obviously is a period of over one year since the matter was last in Court.
17. While I empathize with the reasons adduced by the Plaintiff’s advocate for the delay, it is instructive to note that no evidence has been tendered to prove the same. The reasons for the delay are therefore not ascertainable by the court.
18. Be that as it may, I am of the view that dismissal of a suit ought to be a measure of last resort, and the court is inclined to sustain a suit where possible. I believe that the Plaintiff would suffer immense prejudice if the suit were to be terminated at this stage. In any case, when this suit proceeds to hearing, both parties will have an opportunity to ventilate their cases before a final determination is rendered.
19. Having considered the above factors, I chose to exercise my discretion in favour of having this suit sustained. Consequently, the present application is dismissed, but with no order as to costs.
20. The Respondent is hereby directed to take steps and ensure the suit is set down for hearing within 30 days from today’s date; failure to which the suit shall automatically stand dismissed.
21. It so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
5TH DAY OF JUNE, 2025
ADO MOSES
JUDGE
In the presence of:
Moses – C/A
Ms/Tuwei…………..for the Def/Applicant
.N/A…………….......for the Respondent