[2018] KEHC 5910 (KLR)
The court found that although there was a delay in prosecuting the matter, the delay was not so prolonged as to warrant dismissal of the suit. The plaintiff had taken some steps, such as writing letters to the Deputy Registrar, and the delay was partly attributed to the missing court file. The court determined that...
Source-derived case information.
- Citation
- [2018] KEHC 5910 (KLR)
- Parties
- Plaintiff: Christopher Ndarathi Murungaru; Defendant: Baraa Limited t/a Kenya Television Network; Defendant: Mohammed Ali; Defendant: Dennis Onsarigo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 565 of 2011
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff granted six months to prosecute.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Pre Trial Directions
- 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
Christopher Ndarathi Murungaru
Plaintiff
Baraa Limited t/a Kenya Television Network
Defendant
Mohammed Ali
Defendant
Dennis Onsarigo
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether the delay in prosecuting the suit is inordinate and inexcusable.
Ratio Decidendi
The court found that although there was a delay in prosecuting the matter, the delay was not so prolonged as to warrant dismissal of the suit. The plaintiff had taken some steps, such as writing letters to the Deputy Registrar, and the delay was partly attributed to the missing court file. The court determined that justice could still be served and, therefore, declined to dismiss the suit. However, given the age of the matter, the court ordered that the suit must be prosecuted within six months, failing which it would stand dismissed.
Court Disposition
Suit not dismissed; plaintiff granted six months to prosecute.
Orders
- The plaintiff's suit shall not be dismissed for want of prosecution.
- The suit must be prosecuted within six months from the date of the ruling, failing which it shall stand dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL CASE NO. 565 OF 2011
CHRIST0PHER NDARATHI MURUNGARU......................................PLAINTIFF
VERSUS
BARAA LIMITED T/A KENYA TELEVISIONNETWORK...1ST DEFENDANT
MOHAMMED ALI........................................................................2ND DEFENDANT
DENNIS ONSARIGO....................................................................3RD DEFENDANT
RULING
The matter herein was on the 8th day of June, 2018 listed for Notice to show cause why it should not be dismissed for want of prosecution under the provisions of Order 17 Rule 2 of the Civil procedure Rules.
In response to the said notice, Counsel for the plaintiff filed an affidavit on 6th June 2018 sworn by Sankoh Bondi on even date. The deponent is the counsel on record for the plaintiff. He depones that the plaintiff is desirous of having the suit heard or determined on merits and the reason why the suit has not been prosecuted is because the court file was missing as a result of which he was unable to fix the matter for pre-trial directions. He has annexed several letters he wrote to the Deputy Registrar requesting for a mention date for purposes of setting down the matter for pre-trial directions. He has urged the court not to dismiss the matter.
A perusal of the record shows that the matter was last in court on the 5th day of May, 2014 when it was stood over generally. Thereafter, the plaintiff did not take any other action until the matter was listed on 23rd February 2018 for notice to show cause on which date, the plaintiff’s advocate had not been served with the notice.
I have perused the letters annexed to the affidavit sworn by Sankoh Bondi and I note that the first letter requesting for a date for pre-trial is dated 4th April, 2017 which was almost two years since the matter was last in court. The letter was placed before the Deputy Registrar who advised that a date be taken at the registry. That never happened. It would appear that the plaintiff went to sleep until his counsel was served with a notice to show cause by the court. Though there is delay in prosecuting the matter, I find that the same is not prolonged and justice can still be served despite the delay.
In the circumstances, the plaintiff’s suit will not be dismissed but since it’s an old matter, I do order that the same be prosecuted within 6 months from today failing which it shall stand dismissed.
Dated, Signed and Delivered at Nairobi this 21stDay of June 2018.
…………………………….
L. NJUGUNA
JUDGE
In the Presence of
…………………………. For the Plaintiff
…………………………. For the Defendant