[2016] KEHC 5418 (KLR)
The court found that although there was a significant delay in prosecuting the suit, the plaintiffs had made some efforts to move the matter forward, as evidenced by letters inviting parties to take hearing dates and attempts to trace the court file. The court accepted that the inability to trace the file could...
Source-derived case information.
- Citation
- [2016] KEHC 5418 (KLR)
- Parties
- Plaintiff: Daniel Odhiambo Awinde; Plaintiff: Margaret Wangari Wainaina; Defendant: Kenya Wildlife Service; Defendant: Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 191 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application to Reinstate Suit After Dismissal for Want of Prosecution
- Outcome
- Application allowed; suit reinstated and transferred to Employment and Labour Relations Court.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal From Service, Reinstatement of Suit, Want of Prosecution, Transfer of Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Odhiambo Awinde
Plaintiff
Margaret Wangari Wainaina
Plaintiff
Kenya Wildlife Service
Defendant
Hon. Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Reinstate Suit After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution.
- 2 Whether the plaintiffs made sufficient effort to prosecute the suit before dismissal.
- 3 Whether the matter falls within the jurisdiction of the Employment and Labour Relations Court.
Ratio Decidendi
The court found that although there was a significant delay in prosecuting the suit, the plaintiffs had made some efforts to move the matter forward, as evidenced by letters inviting parties to take hearing dates and attempts to trace the court file. The court accepted that the inability to trace the file could explain the lack of progress. Given the discretionary nature of the order and the principle that courts should endeavor to sustain suits rather than dismiss them, the court set aside the dismissal order and reinstated the suit. Furthermore, the court determined that the cause of action properly fell within the jurisdiction of the Employment and Labour Relations Court and ordered...
Court Disposition
Application allowed; suit reinstated and transferred to Employment and Labour Relations Court.
Orders
- The order of 27th February, 2015 dismissing the suit is set aside.
- The suit is reinstated.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 191 OF 2006
DANIEL ODHIAMBO AWINDE........................................1ST PLAINTIFF
MARGARET WANGARI WAINAINA..............................2ND PLAINTIFF
VERSUS
KENYA WILDLIFE SERVICE.......................................1ST DEFENDANT
HON. ATTORNEY GENERAL.....................................2ND DEFENDANT
RULING
The plaintiffs herein filed a suit against the defendants in March, 2006 claiming various reliefs based on dismissal from service by the 1st defendant. The two defendants denied the plaintiffs’ claim. This suit was not prosecuted for quite some time and on 27th February, 2015 the court dismissed it for want of prosecution under Order 17 Rule 2 (1) of the Civil Procedure Rules.
There is before me an application by way of Notice of Motion dated 12th May, 2015 to reinstate the suit that had been dismissed. The application is opposed. Both learned counsel have filed written submissions to the application the contents of which I have read. Order 17 Rule 2 (1) aforesaid provides as follows,
“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”
The rule is clear that it is the court on its own motion that initiates the steps to be taken. I believe the rule is intended to ensure that where parties are not keen or interested in pursuing matters that have been lodged before the court, they should be reminded that the court is not a depository of matters not intended for action. The last time this matter was before the court was 17th June, 2013. Since then no action has been taken.
The defendants’ counsel states that there was some inability to trace the court file, but between 2013 and the date when the suit was dismissed no effort had been made to locate the said file and the only letter pointing towards that effort is dated 30th March, 2015 addressed to the Deputy Registrar.
I do not wish to cast any aspersions on the contents of the said letter but as submitted by learned counsel for the defendants the letter may have been initiated following the dismissal order aforesaid. There are several copies of letters annexed to the reply to the application by the plaintiffs’ counsel showing that they had invited the parties to attend the registry to take hearing dates for the prosecution of the suit.
There are stamps by the counsel for the 1st defendant and State Law Office acknowledging receipt of the said letters but the court record does not show that any dates were taken following the efforts by the plaintiffs’ counsel. It is therefore possible that indeed the court file could not be traced and that would confirm the reason why the suit has not been prosecuted.
It is accepted that the courts should endevour to sustain the suit brought by litigants rather than dismissing the same. The order sought is discretionary and taking into account the obtaining circumstances in this suit, I am inclined to give the plaintiffs another chance to prosecute their suit. That being the case, the order made on 27th February, 2015 is hereby set aside and the suit reinstated.
The cause of action herein falls within the jurisdiction of Employment and Labour Relations Court and therefore this file shall be transferred to the said court for hearing and determination. The parties herein with assistance of the Deputy Registrar of this court shall ensure that this order (of transfer) is implemented within the next 14 days. The costs shall be in the cause.
Orders accordingly.
Dated, signed and delivered at Nairobi this 12 day of April, 2016.
A. MBOGHOLI MSAGHA
JUDGE