[2006] KEHC 1684 (KLR)
The court found that although there was a delay in prosecuting the suit, the delay was not intentional or contumelious. The plaintiffs provided satisfactory explanations for the delay, including ongoing appellate proceedings, missing tribunal records, and systemic difficulties in obtaining hearing dates. The court...
Source-derived case information.
- Citation
- [2006] KEHC 1684 (KLR)
- Parties
- Plaintiff: A.C.A. D’SOUZA; Plaintiff: Abdulshakoor Khandwalla; Defendant: E.A.B. Society Ltd.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 155 & 156 of 1994
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Excusable Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A.C.A. D’SOUZA
Plaintiff
Abdulshakoor Khandwalla
Plaintiff
E.A.B. Society 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 prolonged delay by the plaintiffs.
- 2 Whether the delay in prosecuting the suit was intentional and contumelious.
Ratio Decidendi
The court found that although there was a delay in prosecuting the suit, the delay was not intentional or contumelious. The plaintiffs provided satisfactory explanations for the delay, including ongoing appellate proceedings, missing tribunal records, and systemic difficulties in obtaining hearing dates. The court accepted these reasons as excusable and concluded that the threshold for dismissal for want of prosecution had not been met. Consequently, the defendant's application for dismissal was dismissed, and each party was ordered to bear its own costs.
Court Disposition
Application for dismissal for want of prosecution dismissed.
Orders
- The motion for dismissal is dismissed.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Civil Suit 155 & 156 of 1994
A.C.A. D’SOUZA
ABDULSHAKOOR KHANDWALLA …........................................…..PLAINTIFFS
VERSUS
E.A.B. SOCIETY LTD. …………………..................……….DEFENDANT
R U L I N G
East African Building Society Ltd., the defendant/applicant herein, invoked the provisions of order XVI rule 5 of the Civil Procedure rules and applied for this suit to be dismissed for want of prosecution. The Motion is supported by the affidavit of Ushwin Khanna, learned advocate for the defendant.
The Plaintiffs opposed the Motion by replying on the affidavit of Abdulshakoor Khandwalla.
It is the submission of the defendants that seven years have lapsed since the plaintiff took a step to have the case prosecuted. It is also averred that it is over 11 years since this suit was filed by the plaintiff against the defendants and that the plaintiff has not made any move to list the same for hearing.
The plaintiff sought to explain the cause for the delay by giving the chronology of events leading to the current position. Mr. Ushwin Khanna advocate for the defendant agreed with those facts deponed in the affidavit of Abdulshakoor Khandwalla.
In brief, the plaintiffs denied that they had failed to take any steps as alleged by the defendant. The plaintiffs gave the details of the steps they took in an attempt to have the dispute heard and finalized. It is averred that the plaintiffs obtained an order of injunction restraining the defendant from distressing for rent sometimes in the year 1994. The defendant filed an appeal against the decision in the court of Appeal and the court of appeal confirmed the orders on 25. 7.97 on condition that the difference of the increased rent be deposited on an interest earning account in the joint names of the counsels. It is said that the appeal could not proceed for hearing because the tribunal records went missing and this fact prompted Mr. Justice Maraga to stay the assessment of the rent and directed the matter to be heard de novo before the tribunal. It is said the aggrieved party preferred an appeal against Justice Maraga’s decision. The appeal is still pending for hearing before the court of appeal.
The facts as stated by the plaintiffs are not contested. It is further stated by the plaintiffs that it has become extremely difficult to secure a hearing date in the High court Registry, Mombasa because hearing dates are given on quota basis.
I have considered the submissions of both M/s Kasmani advocate for the plaintiffs and Mr. Khanna advocate for the defendant. I have further taken into account the material placed before me. It is trite law that a suit will be dismissed where the delay or default is intentional and contumelious. In this case I am satisfied that there is a delay but the delay is not intentional. I am convinced that the plaintiff’s Counsel has given good reasons to excuse the delay.
In the end, the motion is ordered dismissed with each party meeting its own costs.
Dated and delivered at Mombasa this 16th day of June 2006.
J.K. SERGON
J U D G E
Suchak h/b Kasmani for the plaintiff.
Okongo for the defendant