[2010] KEHC 818 (KLR)
The court found that the delay in prosecuting the suit was adequately explained by the respondent, who had been engaged in bona fide negotiations with the 2nd applicant to settle the dispute out of court. The evidence of ongoing correspondence and meetings between the parties' advocates demonstrated that the...
Source-derived case information.
- Citation
- [2010] KEHC 818 (KLR)
- Parties
- Plaintiff: Alice Wairimu Mwangi; Defendant: P. Waigwa Ngunjiri t/a Waigwa Ngunjiri & Co. Advocates; Defendant: Hendricus Anthonius Flaton
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 297 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- SP Ouko
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Prejudice to Defendant, Out of Court Settlement, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Wairimu Mwangi
Plaintiff
P. Waigwa Ngunjiri t/a Waigwa Ngunjiri & Co. Advocates
Defendant
Hendricus Anthonius Flaton
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 and inexcusable delay.
- 2 Whether the delay in prosecuting the suit has prejudiced the defendants or rendered a fair trial impossible.
Ratio Decidendi
The court found that the delay in prosecuting the suit was adequately explained by the respondent, who had been engaged in bona fide negotiations with the 2nd applicant to settle the dispute out of court. The evidence of ongoing correspondence and meetings between the parties' advocates demonstrated that the respondent had not lost interest in the matter. The applicants did not controvert these explanations. As such, the delay was not inordinate or inexcusable, and there was no demonstrated prejudice to the defendants or risk of injustice. The application for dismissal for want of prosecution therefore failed.
Court Disposition
application dismissed
Orders
- The application for dismissal of the suit for want of prosecution is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO.297 OF 2004
ALICE WAIRIMU MWANGI...................................................................................PLAINTIFF/APPLICANT
VERSUS
P. WAIGWA NGUNJIRI T/A WAIGWA NGUNJIRI & CO. ADV.....................................1ST RESPONDENT
HENDRICUS ANTHONIUS FLATON................................................................................2ND RESPONDENT
RULING
This is an application brought under order 16 rules 5 and 6 of the Civil Procedure Rules for the dismissal of this suit for want of prosecution. The court’s inherent jurisdiction to dismiss a suit for want of prosecution under former provision is exercised where:
i)within three months after the close of pleadings, or after the removal of the suit from the hearing list or after the adjournment of the suit generally, the plaintiff or the court of its own motion on notice to the parties, does not set down the suit for hearing, the defendant may either set the suit down for hearing or apply for its dismissal.
Under the latter provision
2. in any case not otherwise provided for in which no application is made or step taken for a period of three years by either party with a view to proceeding with the suit, the court may order the suit to be dismissed, and in such case the plaintiff may, subject to the law of limitation, bring a fresh suit.
The suit was instituted on 1st November, 2004. It was last in court on 28th June, 2007 when the respondent was granted leave to file a supplementary affidavit within 90 days from the date of that leave. This application was brought on 24th February, 2010, over two years since the last time the plaintiff took action in the matter.
The applicants have averred that the respondent has lost interest in the matter and that they would be prejudiced as there cannot be a fair trial in view of the delay.
In reply to these averments the respondent’s counsel has deposed that the respondent and the 2nd applicant have been having extensive on-and-off negotiations aimed at settling the dispute out of court. That this matter is related to Nbi. HCCC No.399 of 2004 in which the 2nd applicant is represented by the firm of Hamilton Harrison and Mathews Advocates. The negotiations involve both this suit and Nbi. HCCC No.399 of 2004. Counsel has further stated that throughout the aforesaid negotiations, the 2nd applicant has always made the respondent to believe that their advocates in this matter was aware of the negotiations. It is also stated that the negotiations collapsed towards the end of 2009 and the Nairobi suit was set down for hearing while this suit could not be set down for hearing due to lack of dates in the registry for this year.
I have considered these arguments together with the authorities cited by counsel for the applicants – i.e., Agip (K) Ltd. V Highlands Tyres Ltd. (2001) KLR 630 and MobileKitale Service Station v Mobil Oil (K) Ltd. & Another (2004) 1 KLR 1.
These and other authorities cited in them give the guidelines for consideration of applications of this nature. These principles are to the effect that:
i)the jurisdiction to dismiss a case for want of prosecution must be resorted to in exceptional cases, is permissive and not compulsory,
ii)the suit will only be dismissed if the court is satisfied that the delay is inordinate,
iii)the suit will also be dismissed if the inordinate delay is inexcusable,
iv)there will be an order of dismissal if the defendant is likely to be prejudiced as a result of the delay,
v)the suit will be dismissed if the court is satisfied justice cannot be done due to the inordinate delay.
See Allen v Sir Alfred Mc Alpine & Sons (1968) ALL ER.
The respondent has explained that since this matter came up in court on 28th June, 2007 she has not been sleeping. That she has been engaged in negotiations aimed at compromising this suit and Nbi HCCC No.399 of 2004. These averments have not been challenged.
I have looked at the annextures to the replying affidavit and I am persuaded that indeed the respondent has not lost interest in the matter. Her advocate has been exchanging letters and holding meetings with the advocates of the 2nd applicant between July, 2005 all through to July, 2009. The efforts by the respondent to list this matter for hearing after the negotiations collapsed have similarly not been controverted.
For these reasons I come to the conclusion that the apparent delay has adequately been explained and this application fails. It is dismissed. I make no orders as to costs.
Dated, Signed and Delivered at Nakuru this 23rd day of July, 2010.
W. OUKO
JUDGE