[2014] KEHC 722 (KLR)
The court found that the delay in prosecuting the matter could not be solely attributed to the Plaintiff, as the last adjournment was caused by the Defendant's counsel's illness and the Defendant had not complied with pre-trial directions under Order 11. The Plaintiff's counsel was ready to proceed at the last...
Source-derived case information.
- Citation
- [2014] KEHC 722 (KLR)
- Parties
- Plaintiff: Charles Onyango Anguka and Gerphas Obonyo t/a Jopiju Electrical and General Works; Defendant: Equity Bank Limited; Third Party: Elisha Ochieng Ombere t/a Jupiju Electrical Services Contractor
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 578 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Defendant's application for dismissal for want of prosecution dismissed.
- Judges
- DO Ogembo
- Legal Topics
- Dismissal for Want of Prosecution, Pre Trial Directions, Adjournment of Hearing, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Onyango Anguka and Gerphas Obonyo t/a Jopiju Electrical and General Works
Plaintiff
Equity Bank Limited
Defendant
Elisha Ochieng Ombere t/a Jupiju Electrical Services Contractor
Third Party
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.
- 2 Whether the Plaintiff is to blame for the delay in prosecuting the suit.
- 3 Whether the Defendant complied with pre-trial directions under Order 11.
Ratio Decidendi
The court found that the delay in prosecuting the matter could not be solely attributed to the Plaintiff, as the last adjournment was caused by the Defendant's counsel's illness and the Defendant had not complied with pre-trial directions under Order 11. The Plaintiff's counsel was ready to proceed at the last hearing. Therefore, it would be unjust to dismiss the suit for want of prosecution. The Defendant's application was dismissed, and directions were given for any party wishing to file further documents to do so within 30 days, with the matter to be mentioned for compliance.
Court Disposition
Defendant's application for dismissal for want of prosecution dismissed.
Orders
- The Defendant’s application dated 2nd September 2014 is hereby dismissed.
- The Defendant, and any other party wishing to file any further documents must do so within 30 days from today.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 578 OF 2009
CHARLES ONYANGO ANGUKA AND
GERPHAS OBONYO training as
JOPIJU ELECTRICAL AND GENERAL WORKS.............PLAINTIFF/RESPONDENT
- VERSUS -
EQUITY BANK LIMITED.....................................................DEFENDANT/APPLICANT
ELISHA OCHIENG OMBERE training as
JUPIJU ELECTRICALSERVICES CONTRACTOR..............................THIRD PARTY
R U L I N G
1. The application before the court is Notice of Motion dated 2nd September 2014 filed under Order 17 Rule 2 (3) and Order 51, Rule 1 of the Civil Procedure Rules. The applications seeks the following orders:-
1. That this suit be dismissed with costs for want of prosecution.
2. That costs be awarded to the Defendant/Applicant
2. The application is premised on the grounds set out therein namely:-
1. The matter was last in court on 16th October 2012 (more than one and a half years from date of fixing) when the matter came up for hearing however the court noted that the Defendant’s advocate was indisposed and adjourned the matter.
2. The Plaintiff/Respondent has since then never taken any steps to invite us to take another hearing date or informed us on whether a hearing date was taken or even to agree with the same on when a hearing date is convenient for the parties.
3. The application is supported by affidavit of Florence Njuguna dated 2nd September 2014. The affidavit mainly expands on the above grounds.
4. The application is supported by the 3rd party vide their Notice to the effect dated 24th September 2014 and file in court on 8th October 2014.
5. The Plaintiff however, has opposed the application vide a Replying Affidavit sworn on 1st October 2014 in which the Plaintiff states that the Defendant had not complied with pre-trial directions. In reply to this allegation the Defendant/Applicant submitted that they had not complied with Order 11 because there was a pending application by the Defendant.
6. I have considered the application and submission by the parties. It is noted that all the parties except the Defendant appear to have complied with Order 11. It is also noted that on 16th October 2012 this matter came up for hearing. The Plaintiff’s counsel Mr. Arwa, was ready to proceed to hearing but the Defendant counsel M/s Ratemo was said to be sick and on that account the matter was adjourned. It is therefore not entirely correct to blame the Plaintiff for the delay in the prosecution of this matter. The Defendant caused the adjournment. The Defendant also has not complied with Order 11.
7. In the upshot I make the following orders:-
a. The Defendant’s application dated 2nd September 2014 is hereby dismissed.
b. The Defendant, and any other party wishing to file any further documents must do so within 30 days from today.
c. Matter to be mentioned on 16th December 2014 for compliance.
d. Costs in the cause.
Orders accordingly.
READ, DELIVERED AND DATED AT NAIROBI THIS 31ST DAY OF OCTOBER 2014
E. K. O. OGOLA
JUDGE
PRESENT:
M/s Kirui holding brief for Arwa for the Plaintiff/ Respondents
M/s Nungo holding brief for M/s Ndirangu for the Defendants/Applicant
M/s Kageni holidng brief for Okeyo for the Interested Party
Irene – Court Clerk