[2019] KEHC 1941 (KLR)
The court found that although the plaintiff blamed the defendants for delay in complying with pre-trial directions, the plaintiff had also failed to actively prosecute the matter, including not filing additional witness statements as previously indicated. However, considering the interests of justice and the fact...
Source-derived case information.
- Citation
- [2019] KEHC 1941 (KLR)
- Parties
- Plaintiff: Augustine Kimantiria Nthiga; Defendant: Baraza Limited t/a Kenya Television Network; Defendant: Mohammed Ali; Defendant: Dennis Onsarigo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 61 of 2011
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff granted six months to prosecute the case.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Pre Trial Directions, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustine Kimantiria Nthiga
Plaintiff
Baraza Limited t/a Kenya Television Network
Defendant
Mohammed Ali
Defendant
Dennis Onsarigo
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the delay in prosecuting the suit is attributable to the plaintiff or the defendants.
- 3 Whether the interests of justice require the suit to be spared from dismissal.
Ratio Decidendi
The court found that although the plaintiff blamed the defendants for delay in complying with pre-trial directions, the plaintiff had also failed to actively prosecute the matter, including not filing additional witness statements as previously indicated. However, considering the interests of justice and the fact that both parties contributed to the delay, the court exercised its discretion not to dismiss the suit. Instead, the court ordered that the suit be prosecuted within six months from the date of the ruling, failing which it would stand dismissed automatically.
Court Disposition
Suit not dismissed; plaintiff granted six months to prosecute the case.
Orders
- The suit shall be prosecuted within six months from the date of this ruling.
- If the suit is not prosecuted within six months, it shall stand dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NUMBER 561 OF 2011
AUGUSTINE KIMANTIRIA NTHIGA..........................................PLAINTIFF
VERSUS
BARAZA LIMITED T/A
KENYA TELEVISION NETWORK....................................1ST DEFENDANT
MOHAMMED ALI.................................................................2ND DEFENDANT
DENNIS ONSARIGO..............................................................3RD DEFENDANT
RULING
The matter herein was first listed for Notice to Show Cause why it should not be dismissed for want of prosecution on the 11th October, 2019 when both counsels sought leave to file their respective affidavits in response to the Notice to Show Cause.
It was mentioned on the 31st October, 2019 by which time counsel for the plaintiff had already filed the affidavit but counsel for the defendants informed the court that he did not wish to file any.
The court has perused the affidavit as filed and has also gone through the record of the proceedings. In the said affidavit sworn by one Josephine Kyalo, his advocate on record, the deponent avers that the plaintiff is still interested in pursuing the matter. She avers that the defendants are to blame for the delay in that they only complied with the pre-trial directions on the 19th February, 2019 when they filed a witness statement and list of documents.
Counsel for the plaintiff depones that, now that the defendants have complied, she is ready to move the case forward. He has urged the court not to dismiss the suit.
The court has considered the affidavit aforesaid and the contents thereof. I note that the suit was last in court on the 6th day of May, 2014 when none of the parties appeared in court. When the matter came up in court on the 18th February, 2014, counsel for the plaintiff asked for time to file additional witness statements but to date none has been filed.
On the part of the defendants, the list and bundle of documents were filed on the 19th February, 2019 but since then, the pre-trial directions have not been taken.
Though the plaintiff has blamed the defendants for their failure to comply with pre-trial directions, the court also notes that the plaintiff has not been active in pushing the matter forward. However, in the interest of justice, the court will spare the suit and order that it be prosecuted within six months from the date of this ruling failing which, it shall stand dismissed.
Dated, signed and delivered at NAIROBI this 7th day of November, 2019.
.........................
L. NJUGUNA
JUDGE
In the presence of:
.....................for the Plaintiff
............for the 1st Defendant
...........for the 2nd Defendant
...........For the 3rd Defendant