[2006] KEHC 2878 (KLR)
The court found that the plaintiff had provided a valid reason for the delay in prosecuting the suit, namely being let down by his previous advocate and only becoming aware of the status of the case upon being served with the application for dismissal. The plaintiff had since engaged a new advocate and expressed...
Source-derived case information.
- Citation
- [2006] KEHC 2878 (KLR)
- Parties
- Plaintiff: Bethwel Kandie; Defendant: Kenya Tea Development Agency; Defendant: Ngere Tea Factory Co. Ltd; Defendant: John Chege Karoba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1213 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed; plaintiff to bear costs of the application
- Judges
- JL Osiemo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Award, Change of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bethwel Kandie
Plaintiff
Kenya Tea Development Agency
Defendant
Ngere Tea Factory Co. Ltd
Defendant
John Chege Karoba
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction by the plaintiff.
- 2 Whether the plaintiff has provided sufficient justification for the delay in prosecuting the suit.
- 3 Whether costs should be awarded to the defendant for the application.
Ratio Decidendi
The court found that the plaintiff had provided a valid reason for the delay in prosecuting the suit, namely being let down by his previous advocate and only becoming aware of the status of the case upon being served with the application for dismissal. The plaintiff had since engaged a new advocate and expressed readiness to proceed with the suit. The court held that dismissing the suit would be unjust in these circumstances, provided the defendant is compensated by an award of costs for the application. Therefore, the application for dismissal was dismissed, but the plaintiff was ordered to pay the costs of the application to the defendant.
Court Disposition
application dismissed; plaintiff to bear costs of the application
Orders
- The application for dismissal for want of prosecution is dismissed.
- The plaintiff shall bear the costs of this application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
Civil Case 1213 Of 2002
BETHWEL KANDIE…………………………………………………………PLAINTIFF
VERSUS
KENYA TEA DEVELOPMENT AGENCY…………………………1ST DEFENDANT
NGERE TEA FACTORY CO. LTD………………………...………2ND DEFENDANT
JOHN CHEGE KAROBA…………………………………………..3RD DEFENDANT
RULING
The defendant by this Notice of Motion dated 2nd November 2005 seeks orders that the plaintiff’s suit be dismissed with costs for want of prosecution. He also prays for costs of the suit as well as of this application. The application is premised on the ground that the suit was filed on 5th July 2002 and no steps have been taken to set down the same for hearing.
The application is opposed by the plaintiff who blames the former advocate on record who never informed the plaintiff of what was going on. He was instructed and came on record on 8th February 2006 after the plaintiff was served with this application. He also blames the defendant for delay in that although the plaint was filed on 5th July 2002 he only filed his defence on 10th February 2005 about 3 years later.
The plaintiff has given valid reasons why he never took steps. He was let down by his previous lawyer. He has now engaged another lawyer and is ready to pursue this suit.
He should be allowed to do so and if the defendant is awarded adequate costs, there will be no injustice.
The application is dismissed but the plaintiff will bear the costs of this application.
It is so ordered.
Dated and delivered at Nairobi this 21st day of February 2006.
J.L.A. OSIEMO
JUDGE