[2014] KEHC 7390 (KLR)
The court found that the delay in prosecuting the suit was not inordinate or excessive, given that the suit had been stayed pending the determination of Kitale HC.CC.NO.152 of 2000, which was only dismissed on 6 December 2011. The respondent could not have taken any steps to prosecute the present suit before the...
Source-derived case information.
- Citation
- [2014] KEHC 7390 (KLR)
- Parties
- Plaintiff: Elijah Kiptui Taragon; Defendant: George Kiptanui Cheboi
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 14 of 2007
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution disallowed; respondent to pay costs of the application and to fix the suit for hearing within 14 days.
- Judges
- EO Obaga
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Kiptui Taragon
Plaintiff
George Kiptanui Cheboi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal 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.
- 2 Whether the delay in prosecuting the suit was inordinate and unjustified.
- 3 Whether the respondent has shown sufficient cause for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the delay in prosecuting the suit was not inordinate or excessive, given that the suit had been stayed pending the determination of Kitale HC.CC.NO.152 of 2000, which was only dismissed on 6 December 2011. The respondent could not have taken any steps to prosecute the present suit before the stay was lifted. The application for dismissal was filed almost exactly one year after the stay was lifted, which is within the period contemplated by Order 17 Rule 2. The respondent provided reasonable explanations for the delay, including acting in person, ill health, and relocation. The court held that while the applicant was entitled to bring the application, it would have...
Court Disposition
Application for dismissal for want of prosecution disallowed; respondent to pay costs of the application and to fix the suit for hearing within 14 days.
Orders
- The application for dismissal of the suit for want of prosecution is disallowed.
- The respondent shall pay the costs of this application to the applicant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL CASE NO. 14 OF 2007
PLAINTIFF:.................................................ELIJAH KIPTUI TARAGON
VERSUS
DEFENDANT:.............................................GEORGE KIPTANUI CHEBOI
R U L I N G
The application brought a notice of motion seeking to have this suit dismissed for want of prosecution. The applicant depones in his affidavit in support of the motion that the suit herein has been pending unprosecuted for a period of over twelve (12 years.) The applicant also contends that the respondent has previously brought a multiplicity of suit against him all of which have been dismissed.
The respondent has opposed the application by the applicant on the grounds that the supporting affidavit contains falsehoods and that he has been desirous of prosecuting this case were it not for his ill health and relocation from Trans-Nzoia to Uasin Gishu. The respondent contends that he has been acting in person but has now hired a lawyer and that he is keen on prosecuting the suit.
I have gone through the records and I have to determine whether this suit ought to be dismissed for want of prosecution The suit herein was filed on 12. 2.2007. It is therefore not true that the same has been pending for over 12 years as the applicants alleges in his supporting affidavit.
On 20. 1.2010 an application seeking to stay this suit pending the hearing and determination of a similar one being Kitale HC.CC. NO.152 OF 2000 WAS ARGUED. In a ruling delivered on 3. 2.2010, Justice Ombinja stayed the current suit pending hearing and determination of Kitale HC.CC.NO.152 of 2000.
Kitale HC.CC.NO.152 of 2000 was dismissed for want of prosecution on 6. 12. 2011. This in effect meant that the respondent was at liberty to prosecute the present suit. The respondent never took any step to prosecute this case pending the applicant to bring the present application seeking to dismiss the same
Under the provisions of order 17 Rule 2(b) any party to a suit is at liberty to apply for its dismissal as provided under sub-rule (1). Sub rule (1) of Rule 2 provides that if any step is not taken by either party for one year, an application may be made by any party for the suit to have it dismissed. It is therefore clear that the applicant had the liberty of either fixing the sit for hearing or apply for its dismissal. The applicant opted for the latter option.
As the current suit had been stayed pending determination of Kitale HC.CC.NO.152 of 2000 and the suit having been dismissed on 6. 12. 2011 the period of one year lapsed on or about the December 2012. The applicant was therefore at liberty to either fix it down for hearing or apply for its dismissal. The present application was filed on 13. 12. 2012. The question which I pose is this, was this delay so inordinate as to warrant dismissal of the suit? The provisions under which the present application was brought requires that the respondent shows cause why the suit ought not to be dismissed. The respondent has explained that he was acting in person and that non prosecution of the suit was due to this fact coupled with the fact that he had relocated from Trans-Nzoia to Uasin Gishu and partly because of his ill health. The suit had not remained unprosecuted for a period which can be taken as excessive. There is no way the respondent would have taken any step in this case earlier than 6. 12. 2011 when Kitale HC.CC.NO.152 of 2000 was dismissed because there were orders staying this suit pending conclusion of Kitale HC.CC.NO.152 of 2000, It is apparent that the applicant was keenly waiting for the one year period to end and bring in the application for dismissal. Though the applicant was perfectly in order to bring the application for dismissal, it is good practice to first exhaust the first option that is of fixing the case for hearing before going to the one for dismissal. I find that the respondent has explained himself as to why he did not set down the use for hearing as received. The application for dismissal of the case for hearing as required. The application for dismissal of the case for want of prosecution is disallowed. The respondent should however be penalized to pay costs of this application to the applicant as he was the one who prompted the applicant to bring the same as he failed to prosecute his case in time as required. The respondent shall proceed to take a hearing date for the suit within 14 days from the date of this ruling.
Dated, signed and delivered at Kitale on this 15th day of January, 2014.
E. OBAGA
JUDGE
IN THE PRESENCE OF:-
Mr. Chebii for plaintiff
Court Clerk – Kassaachuon
Mr. Bundi for the defendant
E. OBAGA
JUDGE.