[2014] KEHC 4972 (KLR)
The court found that the Plaintiff had provided a satisfactory explanation for the delay in prosecuting the suit, namely, the referral to arbitration, subsequent application to set aside the arbitral award, and the disappearance and recent recovery of the court file. The court exercised its discretion not to dismiss...
Source-derived case information.
- Citation
- [2014] KEHC 4972 (KLR)
- Parties
- Plaintiff: David Muthami Muthee; Defendant: Africa Merchant Assurance Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 8 of 2009
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit not dismissed; Plaintiff granted leave to proceed.
- Judges
- DO Ogembo
- Legal Topics
- Dismissal for Want of Prosecution, Arbitration Stay, Delay in Prosecution, Setting Aside Arbitral Award
- 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 Muthami Muthee
Plaintiff
Africa Merchant Assurance Co. Ltd.
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 2010.
- 2 Whether the Plaintiff has provided a satisfactory explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the Plaintiff had provided a satisfactory explanation for the delay in prosecuting the suit, namely, the referral to arbitration, subsequent application to set aside the arbitral award, and the disappearance and recent recovery of the court file. The court exercised its discretion not to dismiss the suit for want of prosecution, but directed the Plaintiff to file the intended application within 21 days to ensure expeditious progress of the matter.
Court Disposition
Suit not dismissed; Plaintiff granted leave to proceed.
Orders
- Plaintiff to file the intended application within 21 days from the date of the ruling.
- Matter to be mentioned on 17th June 2014 to monitor progress.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 8 OF 2009
DAVID MUTHAMI MUTHEE :::::::::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
AFRCIA MERCHANT ASSURANCE CO. LTD. ::::::::::: DEFENDANT
R U L I N G
Before the court is a response to the Notice to Show Cause dated 6th May 2014. The said Notice to Show Cause was issued by the court to enable parties show cause why this suit should not be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules 2010.
The Plaintiff has now filed an affidavit in this court on 16th May 2014 in which the Plaintiff provides reasons for the said delay. Before the suit could be listed for hearing, an application was made to stay proceedings pending arbitration. A Ruling was made on 8th June 2009 allowing the matter to proceed to arbitration.
A Ruling was made by the Arbitrator but the Applicant was not satisfied with the Ruling and sought to appeal to the High Court to set aside the arbitral award. Soon thereafter the court file went missing and was only recently recovered and hence the delay.
The Plaintiff states that he is still desirous of proceeding with the matter and pleads with this court for leave to continue with the matter. In fact, the Plaintiff states that the said Notice to Show Cause helped them by producing the court file which had been misplaced.
I have considered the affidavit of the Plaintiff in response to the said Notice to Show Cause. I am satisfied that there is good explanation for the delay. The suit will not be dismissed, but the Plaintiff must proceed and file the intended application within 21 days from the date of this Ruling.
This matter will be mentioned on 17th June 2014 to see how far the Plaintiff has proceeded in this matter.
DATED, READ AND DELIVERED AT NAIROBI THIS 27TH DAY OF MAY 2014
E. K. O. OGOLA
JUDGE
PRESENT:
Ndegwa holding brief for Gachie for Plaintiff
No appearance for Defendant
Teresia – Court Clerk