[2012] KEHC 1050 (KLR)
The court found that the nature of the suit required a full trial to investigate the claims and the validity of the statutory notices allegedly served by the plaintiffs. The court was not satisfied that the plaintiffs had been indolent or that the delay was so inordinate as to warrant dismissal for want of...
Source-derived case information.
- Citation
- [2012] KEHC 1050 (KLR)
- Parties
- Plaintiff: Alhaji Mohammed Omar Masumbuko; Plaintiff: Freight Forwarders Ltd; Defendant: Sam Aola Ooko; Defendant: The Editor Agence France Presse; Defendant: Agence France Presse; Defendant: Kenya Broadcasting Corporation
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 109 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Statutory Notice Requirement, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alhaji Mohammed Omar Masumbuko
Plaintiff
Freight Forwarders Ltd
Plaintiff
Sam Aola Ooko
Defendant
The Editor Agence France Presse
Defendant
Agence France Presse
Defendant
Kenya Broadcasting Corporation
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules.
- 2 Whether the plaintiffs complied with the statutory notice requirement under section 46 of the Kenya Broadcasting Corporation Act.
- 3 Whether the delay in prosecuting the suit was justified.
Ratio Decidendi
The court found that the nature of the suit required a full trial to investigate the claims and the validity of the statutory notices allegedly served by the plaintiffs. The court was not satisfied that the plaintiffs had been indolent or that the delay was so inordinate as to warrant dismissal for want of prosecution. The court also determined that the question of whether the letters sent by the plaintiffs constituted valid statutory notices under section 46 of the Kenya Broadcasting Corporation Act was a matter to be determined at trial based on evidence. Accordingly, the application to dismiss the suit was dismissed, and the matter was directed to proceed to trial.
Court Disposition
application dismissed
Orders
- The application to dismiss the suit for want of prosecution is dismissed.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
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1. ALHAJI MOHAMMED OMAR MASUMBUKO
2. FREIGHT FORWARDERS LTD…………….………….PLAINTIFFS
VERSUS
1. SAM AOLA OOKO
2. THE EDITOR AGENCE FRANCE PRESSE
3. AGENCE FRANCE PRESSE
4. KENYA BROADCASTING CORPORATION…..…..DEFENDANTS
Coram:
Mwera J.
Chakera for Plaintiffs
Jilani for Defendants
Court Clerk Furaha
RULING
In the notice of motion dated 25th June, 2012, the 4th defendant corporation placed before this court under section 46 Kenya Broadcasting Corporation Act (Cap. 221), the Act, section 3A of the Civil Procedure Act and Order 17 rule 2 and Order 51 rule 1 of Civil Procedure Rules the following prayers:
(i)that the suit herein be dismissed as per Order 51 rule 1 Civil Procedure Rules;
(ii)that the suit be struck out for want of prosecution;
(iii)costs against the plaintiffs.
It was stated that the plaintiffs had not complied with section 46 of the Act and they had not taken any steps since 16th September, 2010 to fix the suit for hearing. All that was taken to be prejudicial to the 4th defendant.
It was averred in the supporting affidavit that the plaintiffs did not comply with section 46 aforesaid by serving a notice on the applicant’s managing director and thus the applicant was non-suited.
In their replying affidavit sworn by the 1st plaintiff, the plaintiffs stated that there had been no delay in prosecuting this suit. That on 16th September, 2010 the 4th defendant’s advocate did not show up before court. Seemingly, instructions to him were withdrawn and the present one, Mr. Jilani came on board. As regards serving statutory notices the plaintiffs exhibited copies of letters dated 4th and 8th February, 2001 addressed to the 4th defendant’s managing director before the suit was filed on 6th March, 2001. (annexures AMOM 2, 3).
Directed to submit, each side stuck to its position. After duly going over the plaint and the defence plus the affidavits herein, this court is disinclined to dismiss this suit for want of prosecution. It is of such a nature as to require investigation of the claim by way of evidence at a trial. Evidence will also be led as to whether the two letters of 4th and 8th February, 2001 constituted or did not constitute valid statutory notices under section 46 of the Act.
In sum, the application herein is dismissed. Each side will bear its own costs. Parties have thirty (30) days to file/serve witness statements, bundles of paginated documents and issues ready for trial.
Delivered on 30th October, 2012.
J. W. MWERA
JUDGE