[2018] KEHC 5574 (KLR)
The court found that the plaintiff had failed to take any meaningful steps to prosecute the suit for six years, and no sufficient explanation for the delay was provided. The court emphasized that the provisions of Order 17 Rule 2 (3) and Sections 1A, 1B, and 3A of the Civil Procedure Act are designed to ensure the...
Source-derived case information.
- Citation
- [2018] KEHC 5574 (KLR)
- Parties
- Applicant: Cell Tours & Travel Limited; Defendant: Charles Maina Muriithi; Defendant: Real Insurance Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 414 of 2012
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the 2nd defendant
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order 17 Rule 2, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Cell Tours & Travel Limited
Applicant
Charles Maina Muriithi
Defendant
Real Insurance Limited
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 prolonged inactivity by the plaintiff.
- 2 Whether the plaintiff has provided a sufficient explanation for the delay in prosecuting the suit.
- 3 Whether the interests of justice require the dismissal of the suit after six years of dormancy.
Ratio Decidendi
The court found that the plaintiff had failed to take any meaningful steps to prosecute the suit for six years, and no sufficient explanation for the delay was provided. The court emphasized that the provisions of Order 17 Rule 2 (3) and Sections 1A, 1B, and 3A of the Civil Procedure Act are designed to ensure the expeditious disposal of cases and to balance the rights of both parties. The mere filing of a pre-trial questionnaire after the application for dismissal did not demonstrate genuine interest in prosecuting the suit. In the absence of any overt action or satisfactory explanation for the prolonged delay, the court was satisfied that the 2nd defendant had justified the order...
Court Disposition
suit dismissed for want of prosecution with costs to the 2nd defendant
Orders
- The suit is dismissed for want of prosecution.
- Costs awarded to the 2nd defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CIVIL CASE NO. 414 OF 2012
CELL TOURS & TRAVEL LIMITED........................................APPLICANT
VERSUS
CHARLES MAINA MURIITHI.........................................1ST DEFENDANT
REAL INSURANCE LIMITED........................................2ND DEFENDANT
RULING
This suit was filed on 21st August, 2012 appearance was entered on behalf of the 2nd defendant on 19th September, 2012 while the defence of the 2nd defendant was filed on 4th October, 2012. A reply to the defence was filed on 25th October, 2013 a year after the said defence was filed.
Since then, no action was taken to move the suit forward until this application for dismissal of the suit was filed and served. The application which is dated 1st September, 2016 is under Order 17 Rule 2 (3) and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act. Upon service of the application, the plaintiff filed grounds of opposition and pre-trial questionnaire on 27th September, 2016. The 2nd defendant was allowed leave to serve the 1st defendant with this application by way of substituted service.
Both parties have filed submissions. The submissions on behalf of the plaintiff were filed by the firm of Kerongo Bosire and Co. Advocates while the advocates on record on for the plaintiff are Wachakana and Company Advocates. It is not clear when the firm of Kerongo Bosire and Co. Advocates took over the matter from the firm of Wachakana and Company advocates. No issue however has been raised in that regard.
It is true that it took the 2nd defendant’s action of filing this application to prompt the plaintiff file the pre-trial questionnaire. Even then, no overt action has been taken to demonstrate the plaintiff’s interest in the prosecution of the suit. I say so because the application for dismissal is not an impediment to moving the court under Order 11 of the Civil Procedure Rules and therefore, from 2006 no action has been taken.
When the record is taken into consideration, it actually amounts to six years without any action being taken to prosecute this suit. I know the order being sought has drastic consequence and courts have always tilted in favour of maintaining a suit rather than dismissing the same.
From the grounds of opposition, and the submissions advanced, it is clear the prolonged delay has not been explained. It has also been left open for anyone to guess the reasons for the delay and therefore no excuse has been offered. It may or may not be intentional, but it behoves a party to advance reason with sufficient clarity why a suit has remained dormant for six years. If indeed the plaintiff suffered any loss as pleaded and submitted, it should have been more enthusiastic to ensure that the suit is prosecuted expeditiously.
The provisions of Order 17 Rule 2 (3) are instructive. Thse provisions are there to aid expeditious disposal of cases, and when read alongside Section 1A, 1B and 3A of the Civil Procedure Act, the intended achievement is to ensure that justice is met by balancing the rights of both parties.
In the circumstances, informed by the record before me, I am satisfied that the 2nd defendant has justified the order sought and therefore this suit is dismissed with costs to the 2nd defendant.
Dated, signed and delivered at Nairobi this 19th Day of June, 2018.
A. MBOGHOLI MSAGHA
JUDGE