[2007] KEHC 1325 (KLR)
The court found that both parties contributed to the delay in setting the suit down for hearing. The Plaintiff was unreasonable in waiting for three years without moving the court for directions, while the Defendant acquiesced in the delay by failing to respond to requests for documents. Since the Defendant...
Source-derived case information.
- Citation
- [2007] KEHC 1325 (KLR)
- Parties
- Plaintiff: Apollo Insurance Company Ltd; Defendant: Teleworld Industries Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 342 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- Application to dismiss suit for want of prosecution dismissed.
- Judges
- CJ Kendagor
- Legal Topics
- Dismissal for Want of Prosecution, Judicial Discretion, Delay in Prosecution, Prejudice to Defendant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Apollo Insurance Company Ltd
Plaintiff
Teleworld Industries Limited
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 due to a three-year delay by the Plaintiff.
- 2 Whether the delay in prosecuting the suit was prolonged and inexcusable, and whether the Defendant suffered prejudice as a result.
- 3 Whether the Defendant acquiesced in the delay and is thereby disentitled to seek dismissal.
Ratio Decidendi
The court found that both parties contributed to the delay in setting the suit down for hearing. The Plaintiff was unreasonable in waiting for three years without moving the court for directions, while the Defendant acquiesced in the delay by failing to respond to requests for documents. Since the Defendant participated in the delay, it is not entitled to seek dismissal for want of prosecution. The delay, though present, was not solely attributable to the Plaintiff, and the Defendant suffered no prejudice that would justify dismissal. Accordingly, the application to dismiss the suit was unmerited and was dismissed.
Court Disposition
Application to dismiss suit for want of prosecution dismissed.
Orders
- The application to dismiss the suit for want of prosecution is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 342 of 2001
APOLLO INSURANCE COMPANY LTD…....…………PLAINTIFF
VERSUS
TELEWORLD INDUSTRIES LIMITED……………. DEFENDANT
RULING
The application is a Notice of Motion dated 13th August, 2007 brought under Order XVI rule 5 of Civil Procedure Rules and Section 3A of Civil Procedure Act. It seeks to have the suit dismissed for want of prosecution, and for costs. Only one ground is cited as the basis for the application which is that the Plaintiff has failed and/or neglected to take steps to prosecute the suit for the last 3 years.
The Defendant’s Advocate has sworn affidavit in support of the application in which he summarizes the history of this suit since it was filed on 1st March, 2001. The application is opposed. The Respondent’s Advocate has sworn a replying affidavit in which he explains the delay that has occurred since the matter was last in court on 27th September, 2004.
The power to dismiss a suit for want of prosecution is discretionary and one which should not be exercised unless it is shown that the delay is prolonged and inexcusable and that the Defendant will suffer prejudice by reason of the delay. Mr. Sevany for the Applicant contends that the Plaintiff/Respondent has delayed in setting the suit down for hearing over a period of three years. Mr. Khanna for the Respondent on his part lays blame on Mr. Sevany arguing that on 27th September, 2004 Kasango, J stood over the case generally to enable the parties to agree on documents. Mr. Khanna submitted that while on his part he sent Mr. Sevany his documents immediately after the court order, none had been forthcoming from Mr. Sevany, or any response either way received from him despite reminders to do so.
I have considered both submissions by Counsel. For sure there has been some delay in having this matter set down for hearing. As to who is to blame, each party points an accusing finger on the other, and each in my view is right. It is no excuse that the Respondent stayed put waiting for documents for three years. That is unreasonable. If Mr. Khanna was serious he could have moved the court to order the Applicant’s Advocate to provide it’s list of documents or have the defence struck out, if it came to that.
As for the Applicant, I do find that in keeping quiet and failing to respond to Mr. Khanna’s request for documents, Mr. Sevany acquiesced in the delay in having the suit set down for hearing. A Defendant who has acquiesced in delaying the matter is not entitled to a dismissal of the action for want of prosecution. See IVITA VS KYUMBU [1984) KLR 441 and ALLEN VS SIR ALFRED MCALPINE & SONS [1968]1 ALL ER 543.
Having come to this conclusion I find that the Defendants application to dismiss the suit for want of prosecution is unmerited and the same is dismissed. I make no orders as to costs. I do however order that the Plaintiff should set down the suit for hearing on priority in any event within 30 days from date herein.
Dated at Nairobi this 16th day of November, 2007.
LESIIT, J.
JUDGE
Read, signed and delivered in the presence of:
Kavungu holding brief Sevany for Applicant
Mr. Khanna for Respondent
LESIIT, J.
JUDGE