[2015] KEHC 833 (KLR)
The court found that although there was inordinate delay in prosecuting the suit, the plaintiff provided a reasonable explanation, including his incarceration, financial constraints, and procedural difficulties in changing advocates and retrieving the court file. The court noted that the applicant did not controvert...
Source-derived case information.
- Citation
- [2015] KEHC 833 (KLR)
- Parties
- Plaintiff: David Kimani Kongo; Defendant: The City Council of Nairobi; Applicant: Kenya Anti-Corruption Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 933 of 2000
- Procedural Posture
- Civil Case / Ruling on Motion to Dismiss for Want of Prosecution
- Outcome
- motion to dismiss suit for want of prosecution dismissed
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Explanation for Delay, Costs Orders
- 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
David Kimani Kongo
Plaintiff
The City Council of Nairobi
Defendant
Kenya Anti-Corruption Commission
Applicant
Procedural Posture
Civil Case / Ruling on Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay by the plaintiff.
- 2 Whether the explanation provided by the plaintiff for the delay is sufficient to prevent dismissal of the suit.
Ratio Decidendi
The court found that although there was inordinate delay in prosecuting the suit, the plaintiff provided a reasonable explanation, including his incarceration, financial constraints, and procedural difficulties in changing advocates and retrieving the court file. The court noted that the applicant did not controvert these explanations. The court exercised its discretion to indulge the plaintiff and declined to dismiss the suit for want of prosecution. The motion to dismiss was therefore dismissed, and costs were ordered to abide the outcome of the suit.
Court Disposition
motion to dismiss suit for want of prosecution dismissed
Orders
- The motion seeking to have the suit dismissed for want of prosecution is dismissed.
- Costs shall abide the outcome of the suit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 933 OF 2000
DAVID KIMANI KONGO......................................................PLAINTIFF/RESPONDENT
VERSUS
THE CITY COUNCIL OF NAIROBI............................................................DEFENDANT
KENYA ANTI- CORRUPTION COMMISSION.....INTERESTED PARTY/APPLICANT
RULING
1. Kenya Anti- Corruption Commission, the Interested party herein took out the motion dated 29. 5.2015 in which he applied for this suit to be dismissed for want of prosecution with costs. The motion is supported by an affidavit of Ben Mureisworn on 29. 5.2015. When served with the motion, the Plaintiff filed a replying affidavit, he swore to oppose the motion.
2. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavit filed in support of the motion. It is argued that the plaintiff has failed to set down the suit for hearing since 2. 5. 2013, when the matter was last in court. It is said that since then the plaintiff has not shown any interest in preparing the suit for trial hence the suit should be dismissed for want of prosecution.
3. The plaintiff argued that the reason for his indolence is because he was arrested in February 2001 and arraigned in court vide High Court Criminal Case Number 70 of 2001 and was acquitted after 3 years. He claimed that while in custody, he ran into financial difficulties where he lacked funds to remunerate his counsel. He added that he instructed the firm of Waruhiu & Gathuru Advocates who ceased from acting and eventually he instructed the firm of Kihara Njunguna & Company Advocates who are currently on record. He argued further that the attempts to file the notice of appointment was intricate by virtue of the fact that the court file could not be traced since the registry was being decongested. He added that he did not sue the applicant who voluntarily applied to be enjoined and that no prejudice would be occasioned on it should the suit be allowed to proceed.
4. I have carefully perused the record and it is apparent that the plaintiff filed the suit on 19th June 2000 wherein he sought for vacant possession of property known as LR 209/13539/158. The record shows that the Plaintiff's advocate filed the motion dated 30. 10. 2013 seeking leave to cease acting due to lack of instructions, which application was heard and allowed on 2. 5.2013. Since then, no steps have been taken to have the suit fixed for hearing. It is now more than two years since the last time the matter was in court and the Plaintiff has not taken any steps to have this suit prosecuted.
5. However, looking at the annexure referred to by the plaintiff, there is a letter addressed to Waruhiu & Gathuru Advocatesdated 3rd February 2015 which the advocates on record are requesting for the plaintiff'’s files. There is another document dated 6th February 2015 that confirms receipt of more than one file including the one in this case and a copy of a document that confirms receipt of the cheque paid for purposes of releasing the file to the current advocates on record. I also note that the plaintiff's advocate filed their notice of appointment on 25th February 2015. All these activities were carried out before the applicant filed its application which is the subject matter of this ruling.
6. There is no measure of what amounts to inordinate delay.
Inordinate delay will differ from case to case depending on the circumstances of each case and the nature of the case. The explanation given for the delay is imperative. Due to the reasons advanced by the plaintiff that he was in custody for three years together with the fact that he had financial constraints, I am inclined to indulge him in this matter despite the fact that there was inordinate delay. The applicant did not controvert the plaintiff's averments. Consequently, the motion seeking to have the suit dismissed for want of prosecution is dismissed. Costs shall abide the outcome of the suit.
Dated Signed and Delivered in open court this 20th day of November, 2015.
J. K. SERGON
JUDGE
In the presence of:
………………....………………. for the Plaintiff
……………………………….for the Defendant
........................................for the Interested party