Automated Summary
Key Facts
Kijata Enterprises Ltd filed a suit on 2/5/2002 against Kenya Power & Lighting Co. Ltd seeking damages for breach of contract, business disruption, and income loss due to power supply interruption. The defendant filed a statement of defense and counterclaim in June 2002, with pleadings closing in August 2002. The plaintiff failed to set the case down for hearing until after the suit was dismissed for want of prosecution in June 2008. The case was reinstated in October 2010, but the plaintiff again took no steps to schedule a hearing. The court found the 10-year and 3-month delay inactionable and inexcusable, leading to the suit's dismissal.
Transaction Type
Supply Agreement for power services
Issues
The issue for determination is whether the defendant/applicant has met the test applied by courts in an application for the dismissal of suit for want of prosecution and further whether the delay is prolonged and inexcusable and if it is whether justice can be done despite the delay.
Holdings
The court dismissed the plaintiff's suit for want of prosecution, finding that the delay of over 10 years in setting the case down for hearing was prolonged and inexcusable. The plaintiff failed to demonstrate sufficient cause for the delay, and the court concluded that allowing the suit to proceed would prejudice the defendant. The defendant was awarded costs of the suit and the application.
Remedies
- The applicant is awarded costs of the suit and the application.
- The suit is dismissed for want of prosecution.
Legal Principles
The court relied on the legal principle that an action may be dismissed for want of prosecution if the delay in setting it down for hearing is prolonged and inexcusable. As outlined in IVITA-V-KYUMBU (1984) KLR 440, the court must assess both the justification for delay and whether justice can be achieved despite the delay. In this case, the plaintiff's 10-year inaction, absence of credible excuses, and the defendant's prejudice led the court to dismiss the suit under Order 17 Rule 2(3) of the Civil Procedure Rules.
Precedent Name
IVITA-V-KYUMBU
Cited Statute
Civil Procedure Rules
Judge Name
J. A. Maka'u
Passage Text
- The delay in setting this court down for hearing is prolonged and inexcusable. The delay of 10 years and 3moths since filing of the suit is not only prolonged but unjustified. The plaintiff did not give plausible explanation for failure to set the suit down for hearing.
- Accordingly in exercise of my discretion the application dated 26/3/2012 is allowed and the suit herein is dismissed for want of prosecution. The applicant is awarded costs of the suit and the application.
- In the circumstances, find the delay to be prolonged and that the plaintiff/respondent has shown no sufficient excuse for the alleged delay... The defendant has since 2002 been waiting for the plaintiff/respondent to set suit down for hearing without doing so.