[2017] KEHC 989 (KLR)
The court found that the suit had already been dismissed on 26th September, 2016 for non-attendance of both the plaintiff and his advocate. As such, the subsequent application by the defendant seeking dismissal for want of prosecution was unnecessary and misconceived, since there was no suit pending before the court...
Source-derived case information.
- Citation
- [2017] KEHC 989 (KLR)
- Parties
- Plaintiff: Charles Ndwiga Nguuri; Defendant: Nation Media Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 175 of 2010
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Suit remains dismissed as per the court order of 26th September, 2016; defendant's application for dismissal for want of prosecution is unnecessary.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Non Attendance, Want of Prosecution, Malicious Falsehood, Injurious Falsehood
- 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
Charles Ndwiga Nguuri
Plaintiff
Nation Media Group 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 when it had already been dismissed for non-attendance.
- 2 Whether the defendant's application for dismissal was necessary after the suit had already been dismissed.
Ratio Decidendi
The court found that the suit had already been dismissed on 26th September, 2016 for non-attendance of both the plaintiff and his advocate. As such, the subsequent application by the defendant seeking dismissal for want of prosecution was unnecessary and misconceived, since there was no suit pending before the court to be dismissed. The court therefore confirmed that the suit remains dismissed as per the earlier order, and directed that each party bear their own costs.
Court Disposition
Suit remains dismissed as per the court order of 26th September, 2016; defendant's application for dismissal for want of prosecution is unnecessary.
Orders
- The suit remains dismissed as per the court order of 26th September, 2016.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
HIGH COURT CIVIL CASE NO. 175 OF 2010
CHARLES NDWIGA NGUURI ………………..PLAINTIFF
VERSUS
NATION MEDIA GROUP LIMITED ………..DEFENDANT
RULING
The plaintiff filed this suit against the defendant by a plaint dated 24th March, 2010 and filed on 26th March, 2010 claiming damages for ‘malicious and injurious falsehood’. After service of summons the defendant entered appearance and filed a defence denying the plaintiff’s claim.
The record shows that parties herein have complied with Order 11 of the Civil Procedure Rules but for some reason the case has not been listed for hearing. The last entry shows that this case was listed for hearing on 26th September, 2016 before Njuguna J but both parties and their advocates were absent.
The record further shows that the matter was called out at 9. 45 a.m and since both parties were absent, the Judge dismissed the case for non-attendance of the plaintiff and his advocate. I note that the advocate for the defendant was also not in court on that date. Incidentally, the advocate for the defendant may not have been aware of that order because on 12th June, 2017 this application was filed seeking dismissal of the suit for want of prosecution.
The suit having been dismissed on 26th September, 2016 aforesaid, nothing remained to be addressed by way of such an application. Even then, the record shows that that application was served upon the advocates for the plaintiff on 20th June, 2017 but when it was called out for hearing on 26th July, 2017 counsel for the plaintiff was absent.
Having observed herein above that there is already a dismissal order by the court made on 26th September, 2016, the application by the defendant was not necessary. That being the case, the suit remains dismissed as per the court order of 26th September, 2016 aforesaid and each party shall bear their own costs. Orders accordingly.
Dated, signed and delivered at Nairobi this 7th Day of December, 2017
A.MBOGHOLI MSAGHA
JUDGE