[2014] KEHC 742 (KLR)
The court found that although there had been delay in prosecuting the suit, both parties had not fully complied with pre-trial requirements, as neither had filed witness statements. However, the plaintiff had recently filed a pre-trial questionnaire and statement of issues, demonstrating a continuing interest in...
Source-derived case information.
- Citation
- [2014] KEHC 742 (KLR)
- Parties
- Plaintiff: Elijah Okenye Kenyanya t/a Bono Agencies; Defendant: City Council of Nairobi; Defendant: Moco Africa Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 440 of 2010
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Pre Trial Procedure, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Okenye Kenyanya t/a Bono Agencies
Plaintiff
City Council of Nairobi
Defendant
Moco Africa Limited
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.
- 2 Whether both parties have complied with pre-trial requirements necessary for hearing.
- 3 Whether the plaintiff has demonstrated interest in prosecuting the suit.
Ratio Decidendi
The court found that although there had been delay in prosecuting the suit, both parties had not fully complied with pre-trial requirements, as neither had filed witness statements. However, the plaintiff had recently filed a pre-trial questionnaire and statement of issues, demonstrating a continuing interest in prosecuting the suit. The court held that in the circumstances, it would be more just to allow the suit to proceed rather than dismiss it for want of prosecution. The application for dismissal was therefore declined, and the parties were urged to take immediate steps to facilitate the expeditious disposal of the suit.
Court Disposition
Application for dismissal for want of prosecution declined.
Orders
- The Notice of Motion dated 7th January, 2014 is declined.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 440 OF 2010
ELIJAH OKENYE KENYANYA T/A BONO AGENCIES …….. PLAINTIFF
VERSUS
CITY COUNCIL OF NAIROBI ……………………………….1ST DEFENDANT
MOCO AFRICA LIMITED …………………………………… 2ND DEFEDNANT
RULING
The first defendant filed an application by way of Notice of Motion Dated 7th January, 2014 under Sections 3 and 3A of the Civil Procedure Act, Order 17 Rule 2 (3) and Order 51 Rule 1 of the Civil Procedure Rules for orders that the plaintiff’s suit be dismissed for want of prosecution and costs be awarded to the 1st defendant.
The grounds upon which the orders are sought are that this suit was filed on 27th September, 2010 but has not been heard despite it being set down for hearing once and that the plaintiff has completely lost interest in prosecuting the same.
The application is supported by an affidavit sworn by Karisa Iha the Director, legal services, of the 1st defendant. The plaintiff on the other hand replied by stating that the file had been missing and that is the reason why the prosecution of the suit has been delayed.
I have perused the record before me and noted that the plaintiff has not filed any witness statements as required under the rules and even if the suits were to be listed for hearing it cannot go on.
The 1st defendant on the other hand has filed a list of witnesses and documents but no witness statements are on record. Both parties therefore have not complied with the pre trial steps to facilitate the hearing of this case.
After the application was filed, the plaintiff filed a pre-trial questionnaire under Order 11 Rule 2 and a statement of issues dated 30th June, 2014. It would appear therefore the plaintiff is still desirous to have his suit heard and the court should be inclined to sustain the suit rather than strike it out for want of prosecution.
Accordingly, I decline to grant the orders sought in the Notice of Motion dated 7th January, 2014 but impress upon the parties to take immediate steps to facilitate expeditious disposal of this suit. Costs shall be in the cause.
Dated and delivered at Nairobi this 17th Day of December, 2014.
A.MBOGHOLI MSAGHA
JUDGE