[2005] KEHC 556 (KLR)
The court found that although there had been delay on the part of the plaintiff in preparing the suit for trial and setting it down for hearing, the reasons advanced for the delay—closure of the court diary and unavailability of crucial documents—were not seriously challenged by the 1st Defendant. The court...
Source-derived case information.
- Citation
- [2005] KEHC 556 (KLR)
- Parties
- Plaintiff: Cornelius Oloo Parasi; Defendant: Kenya Commercial Bank Ltd; Defendant: Peggy Adhiambo Parasi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 823 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal refused with conditions.
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court Discretion, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cornelius Oloo Parasi
Plaintiff
Kenya Commercial Bank Ltd
Defendant
Peggy Adhiambo Parasi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution under Order 16 Rule 5(a) of the Civil Procedure Rules.
- 2 Whether the delay in setting the suit down for hearing was excusable.
- 3 Whether the plaintiff should be penalized for the delay.
Ratio Decidendi
The court found that although there had been delay on the part of the plaintiff in preparing the suit for trial and setting it down for hearing, the reasons advanced for the delay—closure of the court diary and unavailability of crucial documents—were not seriously challenged by the 1st Defendant. The court emphasized that it should not lightly shut out a litigant from court and that it retains unfettered discretion in such matters. In the interest of justice, the court refused to dismiss the suit but imposed conditions: the plaintiff must take steps to set the suit down for hearing and pay the 1st Defendant's costs of the application within thirty days, failing which the suit would stand...
Court Disposition
Application for dismissal refused with conditions.
Orders
- Plaintiff to take appropriate steps to set down the suit for hearing within thirty (30) days of the ruling.
- Plaintiff to pay the 1st Defendant's costs of the application assessed at Kshs.15,000/= within thirty (30) days.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL DIVISION, MILIMANI
Civil Case 823 of 2002
CORNELIUS OLOO PARASI……………………………….……..…PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LTD……………….……….1ST DEFENDANT
PEGGY ADHIAMBO PARASI………………………………..2ND DEFENDANT
R U L I N G
This is an application by the 1st Defendant under Order 16 Rule 5 (a) of the Civil Procedure Rules for dismissal of the Plaintiff’s suit for want of prosecution. Under the said rule, if within three (3) months after the close of pleadings the plaintiff or the court of its own motion on notice to the parties does not set down the suit for hearing the defendant may either set the suit down for hearing or apply for its dismissal. The 1st Defendant has elected the second option, as it was entitled to do. The Plaintiff opposes the application. In the replying affidavit sworn by his learned counsel, BERNARD MWERESA EBOSO, it is deponed that the Plaintiff could not set the suit down for hearing this year (2005) because the court diary for substantive hearings for the year 2005 had been closed early in the year and that at the time of swearing the replying affidavit the diary for the year 2006 had not been opened. This is a plea that is not seriously challenged by the 1st Defendant. The replying affidavit was sworn on 7th October, 2005. The present application was filed on 22nd August, 2005. It is also deponed in the replying affidavit that discovery has not been done and therefore the suit it not ready for hearing. Again this is a plea that is not challenged. Learned counsel for the Plaintiff has also deponed that he could not fix the case for hearing last year (2004) or early this year because the Plaintiff did not have some crucial documents which had been taken away by his estranged wife who happens to be the 2nd Defendant.
I have considered the submissions of the learned counsels appearing. It is common ground that the pleadings closed sometime about mid-2003. There has obviously been some delay on the part of the Plaintiff in preparing the suit for trial and in setting it down for hearing. But it is a general principle that the court will not lightly shut out a litigant from court. In other words the court will not lightly dismiss a plaintiff’s suit without a hearing if it is possible to have a hearing. The court has an unfettered discretion in the matter. In the instant case I hold that it is in the interest of justice that the Plaintiff be given a chance to prosecute his suit. I will therefore refuse the application, but not without some penalty to the Plaintiff. The Plaintiff shall within thirty (30) days of delivery of this ruling take appropriate steps to set down the suit for hearing. The Plaintiff shall also, within the same period of time, pay the 1st Defendant’s costs of this application which I hereby assess at Kshs.15,000/=. In default of any one of these two conditions the Plaintiff’s suit shall stand dismissed. Orders accordingly. The matter shall be mentioned on the ………………….day of January, 2006 for appropriate orders.
DATED AND SIGNED AT NAIROBI THIS 24TH DAY OF NOVEMBER, 2005.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 25TH DAY OF NOVEMBER, 2005.