[2006] KEHC 587 (KLR)
The court found that although there was a delay of about a year in fixing the suit for hearing, the plaintiff had demonstrated a strong interest in prosecuting the case and the delay was partly attributable to the illness of the plaintiff's advocate. The defendant also did not take steps to fix a hearing date....
Source-derived case information.
- Citation
- [2006] KEHC 587 (KLR)
- Parties
- Plaintiff: Abdul Aziz Salim Bajaber T/A Bajaber Service Station; Defendant: Kenya Power & Lighting Co. Ltd
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 105 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Interim Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdul Aziz Salim Bajaber T/A Bajaber Service Station
Plaintiff
Kenya Power & Lighting Co. Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay by the plaintiff in fixing the case for hearing.
- 2 Whether the reasons for the delay, including the illness of the plaintiff's advocate, justify retaining the suit on the court's record.
Ratio Decidendi
The court found that although there was a delay of about a year in fixing the suit for hearing, the plaintiff had demonstrated a strong interest in prosecuting the case and the delay was partly attributable to the illness of the plaintiff's advocate. The defendant also did not take steps to fix a hearing date. Considering all the circumstances, including the reasons for the delay and the interests of justice, the court held that it would not be just to dismiss the suit at this stage. The application for dismissal for want of prosecution was therefore rejected.
Court Disposition
application dismissed
Orders
- The application for dismissal of the suit for want of prosecution is rejected.
- Each party to bear own costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Civil Suit 105 of 2002
ABDUL AZIZ SALIM BAJABER
T/A BAJABER SERVICE STATION…………......….APPLICANT/PLAINTIFF
VERSUS
KENYA POWER & LIGHTING CO. LTD……..DEFENDANT/RESPONDENT
RULING
This application is dated 14. 4.2005. It seeks dismissal of this suit for want of prosecution. The facts show that the suit was filed on 15. 8.2002 under a certificate of urgency. Interim injunction orders were granted to the plaintiff/respondent ex-parte and the application accompanying the suit was fixed for a hearing interpartes on 4. 9.02. But the application was not so heard until 11. 3.2004 and on 23. 3.2004 a ruling was made granting temporary orders until the case is heard and finally determined.
By 28. 4.2005 when this application was filed, the suit had not been fixed for a hearing – a period of about one year. Hence the filing of this application for dismissal of the suit for want of prosecution, as submitted by Mr. Makini for the defendant/applicant.
Mr. Kibanga for the plaintiff sought for more time to have the case be fixed for a hearing. He said his client was interested in the case and he as his advocate contributed to the delay due to sickness.
I have carefully perused the material upon which this application is based together with the arguments advanced by both sides. The principles upon which a case can be dismissed for want of prosecution are generally settled. A court will dismiss a case if considering all the circumstances of the case, including the cause of the delay, it finds that it will be in the interest of justice to do so. The court will accordingly take into account the length of the delay, the reasons for delay, whether or not a trial at the time of the application will be fair or not; or whether a trial will be unfair or will be easy or complicated due to the kind of evidence possibly needed to prove the case. This means that the grounds for dismissing or not dismissing a case are not limited and every case will be considered on its own circumstances. In my view the legal authorities submitted in support of either party herein, support the above principle.
In the case before me, the plaintiff definitely delayed fixing the suit for a hearing for about a year. He expresses a strong interest to prosecute the case, The applicant himself failed to take a hearing date when he realised that the plaintiff had failed to do so, at least to fulfil the optional requirement under the rule of procedure under which he has approached this court for dismissal. The court also notes that the plaintiff’s advocate was sick for a reasonably long period and claims some responsibility for the delay.
Having considered the above circumstances, I have come to the conclusion that it will not be in the interest of justice to dismiss this suit at this stage. This application therefore fails to succeed and is rejected. Each party to bear own costs. It is so ordered.
Dated at Machakos this 28th day of September, 2006.
D.A. ONYANCHA
JUDGE