[2003] KEHC 575 (KLR)
The court found that the delay in prosecuting the suit was satisfactorily explained by the plaintiff, who faced challenges due to a change of advocates and the need to settle outstanding legal fees before obtaining the case file. Additionally, the court noted that the substantive suit could not have been set down...
Source-derived case information.
- Citation
- [2003] KEHC 575 (KLR)
- Parties
- Plaintiff: Anna Ndunge Kisia; Defendant: Municipal Council of Mombasa; Defendant: Sadiq Omar Salim
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 126 of ??
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Change of Advocates, Injunctive Relief, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anna Ndunge Kisia
Plaintiff
Municipal Council of Mombasa
Defendant
Sadiq Omar Salim
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 under Order XVI Rule 5 of the Civil Procedure Rules.
- 2 Whether the delay in prosecuting the suit was justified by the change of advocates and issues with transfer of the plaintiff's file.
- 3 Whether the pending application prevented the substantive suit from being set down for hearing.
Ratio Decidendi
The court found that the delay in prosecuting the suit was satisfactorily explained by the plaintiff, who faced challenges due to a change of advocates and the need to settle outstanding legal fees before obtaining the case file. Additionally, the court noted that the substantive suit could not have been set down for hearing while an application by the 2nd defendant was still pending. As such, the defendants failed to establish sufficient grounds for dismissal of the suit for want of prosecution. The application was therefore dismissed with costs to the plaintiff.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 28th March 2003 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO.126 OF 2000
ANNA NDUNGE KISIA ……………………………………. PLAINTIFF
VERSUS
1. MUNICIPAL COUNCIL OF MOMBASA
2. SADIQ OMAR SALIM ………………………………. DEFENDANTS
R U L I N G
Application before me is a Notice of Motion dated 28th March 2003 filed by Mr. Khatib advocate, acting for the 2nd defendants, seeking the dismissal of this suit for want of prosecution under Order XVI Rule 5 of the Civil Procedure Rules.
This suit was initially instituted by ANNA NDUNGE KISIA (the plaintiff) through a plaint dated 13th March 2000 drawn by M/s KENZI AND KENZI ADVOCATES on her behalf against The Municipal Council of Mombasa (1st Defendant) only. The prayers sought were a declaration that Plot No.294 Mikindani (suit property) belongs to the Plaintiff and an order of injunction to issue against the 1st defendant restraining it from obstructing and threatening the plaintiff or in any way interfering with the suit property.
On the 21st March 2000 an amended plaint was filed, bringing in the second defendant. The pleadings however remained the same as per the original plaint dated 13th March 2000.
The law firm of M/s Khatib & Co. Advocates filed a Notice of Appointment on the 27th March 2000 to act for the 2nd Defendant, while Mr Karisa Iha advocate is acting for the 1st Defendant.
On the 14th September 2000 M/s J.M. Mburu & Co. advocates filed a Notice of Change of Advocates. They took over the defence of the first defendant from Mr. Karisa Iha Advocate.
On 2nd October 2001 Kenzi & Kenzi Advocates filed a Notice of Motion seeking leave of the court to cease acting for the plaintiff on ground that they had been acting for the plaintiff and her husband in numerous matters for the last eight years and accumulated substantial legal fees which remained unpaid. Leave was granted as prayed. Thereafter the plaintiff engaged the services of M/S Musinga & Co. advocates. Now Mr. Joseph Munyithya is prosecuting this case.
It is Mr. Munyithya’s submission in opposing this application that the delay in prosecuting this case was due to change of advocates and that there was a delay in getting the plaintiff’s file from M/s Kenzi & Kenzi advocates over pending legal fees which had to be paid.
I have also perused the pleadings filed and the record of the court. The substantive suit could not have been set down for hearing when application dated 27/6/2001 was still pending.
In that application the 2nd defendant was seeking the setting aside of an order made on 26. 6.2001 dismissing an application dated 28. 3.2001 for want of prosecution. The defendants have not therefore made out a case for the dismissal of this suit for want of prosecution.
There is no merit in the Notice of Motion dated 28th March 2003 and the same is dismissed with costs to the plaintiff.
It is so ordered.
Dated and delivered at Mombasa this 30th July 2003.
A.G.A. ETYANG
JUDGE