[2019] KEHC 6918 (KLR)
The court found that the delay in prosecuting the suit was satisfactorily explained by the plaintiff, particularly due to the misplacement and reconstruction of the court file, and the need for the plaintiff's counsel to obtain instructions from a foreign-based client. The defendant did not demonstrate any prejudice...
Source-derived case information.
- Citation
- [2019] KEHC 6918 (KLR)
- Parties
- Plaintiff: Dorothy Cecelia Murphy; Defendant: Samson K. Nyamweya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2464 of 1997
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- notice to show cause vacated; suit to proceed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Notice to Show Cause, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorothy Cecelia Murphy
Plaintiff
Samson K. Nyamweya
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 (1) of the Civil Procedure Rules.
- 2 Whether the delay in prosecuting the suit has been satisfactorily explained.
- 3 Whether any prejudice would be occasioned to the defendant if the suit proceeds.
Ratio Decidendi
The court found that the delay in prosecuting the suit was satisfactorily explained by the plaintiff, particularly due to the misplacement and reconstruction of the court file, and the need for the plaintiff's counsel to obtain instructions from a foreign-based client. The defendant did not demonstrate any prejudice that would result from the suit proceeding, nor did he take steps to prosecute his own counterclaim or seek dismissal. In the interests of justice and guided by relevant authorities, the court held that the inordinate delay was excusable and that the suit should not be dismissed for want of prosecution.
Court Disposition
notice to show cause vacated; suit to proceed
Orders
- The notice to show cause is vacated.
- Parties to draw issues for determination within 30 days from the date of the ruling if not already done.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 2464 OF 1997
DOROTHY CECELIA MURPHY.....................PLAINTIFF
VERSUS
SAMSON K. NYAMWEYA.............................DEFENDANT
RULING
This is one of the oldest cases we have on record, and it is no wonder that on 17th November, 2017 it was flagged for dismissal for want of prosecution under Order 17 Rule 2 (1) of the Civil Procedure Rules. When the matter was called out on the said date, learned counsel for the plaintiff informed the court that his client is a British subject, and he needed to contact her and take instructions with the view of filing an affidavit in answer to the notice to show cause.
Subsequently ,that affidavit was filed but no reply was made by the defendant. Both parties have however filed submissions. I have gone through the affidavits and the submissions by both parties. The plaintiff’s counsel has taken the court through a chronology of the movement of this matter from the time it was filed to date. Most significantly is the submission that, on not less than two occasions the court file was misplaced and there is evidence that it had to be reconstructed to facilitate a movement of the matter. There is also evidence that one point judgment was entered in favour of the plaintiff against the defendant who eventually managed to secure an order to set it aside, after which he filed his defence and counter claim.
In the counter claim the defendant was the plaintiff and there is no evidence that he moved the court to have his counter claim heard, nor did he apply for the suit to be dismissed. Above all it is submitted on behalf of the plaintiff that, no prejudice has been disclosed by the defendant if the suit is allowed to proceed. Guided by the authorities cited, and the quest to do justice to both parties, notwithstanding the age of this case, the inordinate delay has been explained satisfactorily and I am persuaded it is excusable.
The foregoing being the case, the notice to show cause is hereby vacated. I direct that the parties shall now draw the issues for determination, if that has not been done, within 30 days from the date of this ruling, and thereafter ensure that this suit is prosecuted within 120 days from the date of filing the issues. The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 4th Day of April, 2019.
A. MBOGHOLI MSAGHA
JUDGE