[2007] KEHC 1951 (KLR)
The court found that although there was delay in prosecuting the suit, the explanation provided by the plaintiff's counsel—that he was out of the country for studies and inadvertently failed to hand over the file—was excusable. The court held that it would not be just to penalize the plaintiff for his counsel's...
Source-derived case information.
- Citation
- [2007] KEHC 1951 (KLR)
- Parties
- Plaintiff: Alfayaz Sunderji; Defendant: Rahim Virani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 440 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal disallowed
- Judges
- ARM Visram
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Defamation Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfayaz Sunderji
Plaintiff
Rahim Virani
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 inordinate delay by the plaintiff.
- 2 Whether the delay in prosecuting the case is excusable under the circumstances.
Ratio Decidendi
The court found that although there was delay in prosecuting the suit, the explanation provided by the plaintiff's counsel—that he was out of the country for studies and inadvertently failed to hand over the file—was excusable. The court held that it would not be just to penalize the plaintiff for his counsel's mistake. However, the court ordered that the plaintiff must take steps to set the case down for hearing within fifteen days, failing which the suit would stand dismissed with costs to the defendant. The application for dismissal for want of prosecution was therefore disallowed, with costs in the cause.
Court Disposition
application for dismissal disallowed
Orders
- Plaintiff to take steps to set the case down for hearing within fifteen days.
- If the plaintiff fails to do so, the suit shall stand dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 440 of 2004
ALFAYAZ SUNDERJI ……………………………….. PLAINTIFF
VERSUS
RAHIM VIRANI ……………………………………. DEFENDANT
RULING
This is an application for dismissal of the suit for want of prosecution under O.16 R.5 of the Civil Procedure Rules. The Applicant says that the Plaintiff has taken no steps to prosecute this suit since its filing on 30th April, 2004.
In her submissions before this Court, Ms. Migiro, Counsel for the Defendant, argued that the delay in prosecuting this case was inordinate, and prejudicial to the Defendant. She submitted that this being a defamation case, there is a likelihood that there will be “loss of evidence” with delays taking place. She has relied on this Courts decision in the case of Agip (Kenya) Ltd. v. Highland Tyres (2001) KLR 630 which laid down the test to be applied in applications for dismissal for want of prosecution.
Although the Plaintiff was not represented at the hearing of this application, his Counsel, Mr. Majanja, filed a Replying affidavit explaining that he was in South Africa from 16th July, 2005 to 30th May, 2006 pursuing further studies, and that he had inadvertently omitted to hand over this file to another advocate in the firm.
Although Mr. Majanja has been tardy in prosecuting this case efficiently, I do not propose to penalize his client for his mistake. The mistake is excusable, but I will Order that he take steps to set this case down for hearing within the next fifteen days, failing which this suit shall remain dismissed, with costs to the Defendant.
This application is disallowed. Costs in cause.
Dated and delivered at Nairobi this 20th day of June, 2007
ALNASHIR VISRAM
JUDGE