[2014] KEHC 2151 (KLR)
The court found that although there had been a delay of over two and a half years since the matter was last in court, the plaintiffs provided a reasonable explanation for the delay, namely that the court file had gone missing and efforts were made to trace it. The court was persuaded that the plaintiffs had not been...
Source-derived case information.
- Citation
- [2014] KEHC 2151 (KLR)
- Parties
- Plaintiff: Dinah Moraa & James Onsando Mose (Suing on their behalf and on behalf the estate of the late Jaquine Osoro and in their capacity as the Legal Representatives, Administrators’ and Parents); Defendant: The Sotik Tea Company
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 343 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- REA Ougo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court File Missing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dinah Moraa & James Onsando Mose (Suing on their behalf and on behalf the estate of the late Jaquine Osoro and in their capacity as the Legal Representatives, Administrators’ and Parents)
Plaintiff
The Sotik Tea Company
Defendant
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction for over two and a half years.
- 2 Whether the explanation provided by the plaintiffs for the delay, namely the missing court file, is sufficient to excuse the delay.
Ratio Decidendi
The court found that although there had been a delay of over two and a half years since the matter was last in court, the plaintiffs provided a reasonable explanation for the delay, namely that the court file had gone missing and efforts were made to trace it. The court was persuaded that the plaintiffs had not been indolent but were prevented from taking action due to circumstances beyond their control. Consequently, the court exercised its discretion to decline the application for dismissal for want of prosecution, giving the plaintiffs a further opportunity to prosecute the suit within a specified period.
Court Disposition
application dismissed
Orders
- The application for dismissal for want of prosecution is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 343 OF 2007
DINAH MORAA & JAMES ONSANDO MOSE (Suing on their behalf and on
behalf the estate of the late JAQUINE OSORO and in their capacity as the
Legal Representatives, Administrators’ and Parents)..................PLAINTIFFS
VERSUS
THE SOTIK TEA COMPANY......................................………………………..DEFENDANT
R U L I N G
Before me is a Notice of Motion dated 11/7/2013. The defendant seeks to have the suit filed on the 13/4/2007 dismissed for want of prosecution. I have read and considered the affidavits filed by the parties. I do note that the matter was last in Court on28/10/2010. It is two and a half (2 ½) years since then. In the respondent’s/appellant’s replying affidavit they admit that the matter was last in Court on the 28/10/10 but offer an explanation why the matter has not taken off since then, that the Court file went missing and efforts to trace the file.
Am persuaded that the Respondents haven’t taken any action because of the challenges they have faced in getting the Court file. The respondents claim that they are intent on prosecuting the suit. I will the respondents a chance to prosecute the suit. I decline to grant the orders sought. The application is dismissed; costs shall be in the cause. The plaintiffs shall endeavor to have the suit fixed for hearing within the next 60 days from the date of this ruling.
Orders accordingly.
Dated, signed and delivered this4thday ofJune2014.
R. E. OUGO
JUDGE
In the presence of:-
……………..………………………………………For the Applicant/Respondent
………………………………….………………….For the Respondent/Appellant
…………………………………………………………….............………Court Clerk