[2002] KEHC 22 (KLR)
The court found that the plaintiff's suit had not been prosecuted for 14 years since its filing in 1987. The plaintiff died in 1992, and although his wife took over, she failed to communicate with her advocate or take steps to fix the case for hearing until 2001. The reasons for her prolonged absence were not...
Source-derived case information.
- Citation
- [2002] KEHC 22 (KLR)
- Parties
- Plaintiff: Ainea Sesi Mutsiambo; Defendant: Lion of Kenya Insurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 45 of 1987
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application allowed; suit dismissed for want of prosecution; no order as to costs
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ainea Sesi Mutsiambo
Plaintiff
Lion of Kenya Insurance Co. Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution due to inordinate and inexcusable delay.
- 2 Whether any order as to costs should be made in the circumstances.
Ratio Decidendi
The court found that the plaintiff's suit had not been prosecuted for 14 years since its filing in 1987. The plaintiff died in 1992, and although his wife took over, she failed to communicate with her advocate or take steps to fix the case for hearing until 2001. The reasons for her prolonged absence were not disclosed, and even after resurfacing, no attempt was made to progress the matter. The court held that such inordinate and unexplained delay was inexcusable and had prejudiced the possibility of a fair trial, as witnesses may have died, memories faded, and documents lost. The court concluded that justice would best be served by allowing the application and dismissing the suit for...
Court Disposition
application allowed; suit dismissed for want of prosecution; no order as to costs
Orders
- The application dated 15th October, 2001 is allowed.
- The plaintiff’s suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 45 of 1987
AINEA SESI MUTSIAMBO ………………………......................PLAINTIFF
VERSUS
LION OF KENYA INSURANCE CO. LTD ………....................DEFENDANT
RULING
The Application before me is dated 15th October, 2001. It is brought under order XV1 r. 2(1) of the Civil Procedure (Revised) Rules and section 3A of the Civil Procedure Act (cap 21) Laws of Kenya.
The application is supported by an affidavit sworn by Jayne Njeri Gathaara who is the applicant’s Advocate.
The import of the supporting affidavit is that this is an old case same having been filed in the year 1987. That very little has been done to prosecute the case. There was an attempt to have it heard in March 2000. But the same was not listed. Since then, no steps were taken to have the case fixed for hearing, hence the application before me.
The application is opposed. A replying affidavit has been filed.
According to the affidavit which has also been sworn by an Advocate from the firm of Advocates representing the plaintiff, the plaintiff in this case died in 1992 that is 5 years after filing the case.
The plaintiff’s wife took over the case but went up country. She did not communicate with her Advocate until the year 2001.
It is said that, she was held up with serious family matters.
This case was filed way back in January 1987. It is now 14 years old.
No serious attempt appear to have been made by the plaintiff or her Counsel to have the matter heard.
An application for dismissal of the suit had been made earlier but was withdrawn. Despite this, there has been a long and inexcusable delay in fixing the case for hearing.
The reasons that made the plaintiff remain up-country for so long have not been disclosed. Even after she re-surfaced no attempt was made to have the case fixed for hearing.
Even if this case goes to hearing justice may not be done.
After a period of 14 years, a fair trial has been prejudiced. Witnesses could have died. The plaintiff himself died. Memories have faded. Documents may have been mislaid, lost or destroyed. It could be difficult to trace witnesses who could have gone to places. The respondent herself is a good example.
I think the only way justice can be done in the matter is to allow the application.
The application dated 15th October, 2001 is allowed. The plaintiff’s suit is dismissed for want of prosecution.
I have however, considered the issue of costs. I think this is a fit case where I should make no order as to costs.
Dated and delivered at Nakuru this 4th day of February, 2002.
D. M. RIMITA
JUDGE