Automated Summary
Key Facts
The plaintiff, Kijata Enterprises Ltd, filed a suit on 2/5/2002 against Kenya Power & Lighting Co. Ltd, alleging breach of contract and seeking damages for business disruption and lost profits due to power supply interruption. The defendant filed a statement of defense and counterclaim on 12.6.2002, with replies exchanged by both parties. The suit was initially dismissed for want of prosecution on 4th June 2008 but reinstated on 29th October 2010. Despite this, the plaintiff failed to set the case down for hearing for over 10 years, leading to the defendant's renewed application for dismissal. The court found the delay prolonged and inexcusable, resulting in the suit's dismissal on 1st November 2012.
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 a suit for want of prosecution, specifically whether the delay is prolonged and inexcusable, and if so, whether justice can still be done despite the delay. This aligns with the legal framework under Order 17 Rule 2(3) of the Civil Procedure Rules.
Holdings
The court dismissed the plaintiff's suit for want of prosecution, finding the delay of over 10 years to be prolonged and inexcusable. The plaintiff failed to provide a credible excuse for the inordinate delay, and the court determined that allowing the suit to proceed would prejudice the defendant and hinder justice.
Remedies
- The court dismissed the plaintiff's suit for want of prosecution, finding the delay in setting the case down for hearing to be prolonged and inexcusable.
- The applicant was awarded the costs associated with both the suit and the application for dismissal.
Legal Principles
The court applied the test established in IVITA-V-KYUMBU (1984) KLR 440 for dismissing suits for want of prosecution, which requires determining whether the delay is prolonged and inexcusable, and if it is, whether justice can still be done despite the delay. The court found the plaintiff's 10-year delay inexcusable and concluded that proceeding would prejudice the defendant.
Precedent Name
IVITA-V-KYUMBU
Cited Statute
Civil Procedure Rules
Judge Name
J. A. Maka
Passage Text
- The test applied by the courts in an application for the dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and, if it is, whether justice can be done despite the delay.
- The delay of 10 years and 3 months since filing of the suit is not only prolonged but unjustified. The plaintiff has not demonstrated having taken any steps to set this suit down for hearing at any one time after reinstatement of the suit.
- Accordingly in exercise of my discretion the application dated 26/3/2012 is allowed and the suit herein is dismissed for want of prosecution.
Damages / Relief Type
General damages for breach of contract, disruption of business operations, and loss of income and profits.