[2019] KEELRC 1797 (KLR)
The court found that the plaintiffs failed to take any meaningful action to prosecute the suit for extended periods, despite being previously granted time to comply with procedural requirements. The court was not satisfied with the plaintiffs' explanation regarding the alleged missing file, as no satisfactory...
Source-derived case information.
- Citation
- [2019] KEELRC 1797 (KLR)
- Parties
- Plaintiff: Christine Mwende; Plaintiff: Anita A. Pamba; Defendant: Nicholas Kopu Katana; Defendant: Baraka Mohamed; Defendant: Hamis Ore; Defendant: Kazungu Mashi; Defendant: Kazungu Wanje; Defendant: Peter Charo; Defendant: Katana Mashakaka; Defendant: Mwamulanda Makiranda; Defendant: Sandei Ziro; Defendant: Kiti J. Jewa; Defendant: Mama Rita
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 33 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- JO Olola
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Process, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Mwende
Plaintiff
Anita A. Pamba
Plaintiff
Nicholas Kopu Katana
Defendant
Baraka Mohamed
Defendant
Hamis Ore
Defendant
Kazungu Mashi
Defendant
Kazungu Wanje
Defendant
Peter Charo
Defendant
Katana Mashakaka
Defendant
Mwamulanda Makiranda
Defendant
Sandei Ziro
Defendant
Kiti J. Jewa
Defendant
Mama Rita
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the plaintiffs were properly served with the notice to show cause.
- 3 Whether the plaintiffs provided sufficient justification for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the plaintiffs failed to take any meaningful action to prosecute the suit for extended periods, despite being previously granted time to comply with procedural requirements. The court was not satisfied with the plaintiffs' explanation regarding the alleged missing file, as no satisfactory evidence was provided. The court was also satisfied that proper notice was given to the plaintiffs regarding the risk of dismissal. In light of the plaintiffs' lack of diligence and failure to comply with court directions, the court held that there was no merit in the application to reinstate the suit and dismissed the application accordingly.
Court Disposition
application dismissed
Orders
- The application to set aside the dismissal and reinstate the suit is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
CIVIL SUIT NO. 33 OF 2010
CHRISTINE MWENDE…………......………………………….1ST PLAINTIFF
ANITA A. PAMBA…………………........………………………2ND PLAINTIFF
VERSUS
1. NICHOLAS KOPU KATANA
2. BARAKA MOHAMED
3. HAMIS ORE
4. KAZUNGU MASHI
5. KAZUNGU WANJE
6. PETER CHARO
7. KATANA MASHAKAKA
8. MWAMULANDA MAKIRANDA
9. SANDEI ZIRO
10. KITI J. JEWA
11. MAMA RITA…………………………………………………… DEFENDANTS
RULING
1. By their Notice of Motion application dated 2nd November 2018, the two Plaintiffs pray that the orders of this Court Made on 18th October 2018 dismissing this suit for want of prosecution be discharged, set aside and/or varied. In that regards, they urge the Court to reinstate the suit and to set it down for hearing.
2. The application which is supported by an affidavit sworn by their advocate G.N. Gakuo is premised on the grounds:-
a) That the Plaintiffs were served with a notice to show cause why the suit should not be dismissed for want of prosecution on 12th October 2018, a day after the date set therein for hearing;
b) That by the time they received the notices, the matter had already proceeded and had been dismissed for non-appearance and/or want of prosecution;
c) That it is in the interest of justice and fairness that the prayers sought in the application be granted.
3. In a Replying Affidavit filed herein on 15th January 2019, the 1st Defendant Nicholas Katana Kopo on behalf of the other Defendants/Respondents avers that the Court acted within its limits in dismissing the suit. It is their case that other than physical service, the matter was served by an email and a notice placed on the Court’s notice board for almost two weeks before the same was dismissed.
4. The Respondents further aver that the contention by the Applicants that the Court file was missing is a mere excuse meant to delay further the conclusion of this matter. It is their case that the Applicants are nolonger interested in the matter and they urge the Court to dismiss the present application.
5. I have considered the application and the response thereto. I have equally considered the submissions by the Learned Advocates for the parties.
6. The legal basis for dismissal of suits for want of prosecution is the requirement of expediency in the prosecution of civil suits and can be traced to Article 159 (2) (b) of the Constitution which provides that justice shall not be delayed. Equally Section 3A of the Civil Procedure Act gives the Courts unlimited power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court.
7. The procedural underpinning to these substantive provisions of the Constitution and the law is Order 17 Rule 2 of the Civil Procedure Rules which allows the Court on its own motion or on notice to the parties, where no action has been taken for one year in a suit to have it dismissed for want of prosecution.
8. Examining the record herein, this suit was instituted on 15th April 2010. Not much has taken place since then. Between September 2012 and September 2015, no action was taken on the matter. On 18th September 2015, the Court listed the matter for dismissal for want of prosecution. Mr. Gakuo, Learned Counsel for the Plaintiffs then appeared and told the Court that they were unable to list the matter for hearing because their office had been burnt down and their file destroyed. He asked the Court to give the Plaintiffs 90 days to prosecute the suit. The Court then granted them 90 days to comply with Order 11 of the Civil Procedure Rules.
9. From the record I am unable to see any such compliance. Indeed no action was again taken on the file between May 2017 and 11th October 2018 when it was listed and dismissed. The contention that the file was missing during that period is not backed by satisfactory evidence.
10. In the circumstances, I find no merit in the application before me. The same is dismissed.
11. Each party shall bear their own costs.
Dated, signed and delivered at Malindi this 9th day of April, 2019.
J.O. OLOLA
JUDGE