[2019] KEHC 4937 (KLR)
The court found that although there was a period of inactivity after the matter was certified ready for hearing, the plaintiff provided an explanation for the delay, namely difficulties in tracing the court file due to alleged renovations and a letter to the Deputy Registrar seeking assistance. The court determined...
Source-derived case information.
- Citation
- [2019] KEHC 4937 (KLR)
- Parties
- Plaintiff: Elizabeth Anne Bukusi; Defendant: Lubano Kizito
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 493 of 2013
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff granted six months to prosecute, failing which suit stands dismissed.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Overriding Objective
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Anne Bukusi
Plaintiff
Lubano Kizito
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 due to delay by the plaintiff.
- 2 Whether the plaintiff has provided a satisfactory explanation for the delay in prosecuting the matter.
Ratio Decidendi
The court found that although there was a period of inactivity after the matter was certified ready for hearing, the plaintiff provided an explanation for the delay, namely difficulties in tracing the court file due to alleged renovations and a letter to the Deputy Registrar seeking assistance. The court determined that the explanation, while not ideal, was sufficient in the interest of justice to avoid dismissal at this stage. The court emphasized the need for expeditious prosecution and ordered that the suit be prosecuted within six months, failing which it would stand dismissed. The court thus balanced the need for timely resolution with the plaintiff's right to be heard, concluding...
Court Disposition
Suit not dismissed; plaintiff granted six months to prosecute, failing which suit stands dismissed.
Orders
- The suit shall be prosecuted within six months from the date of this ruling.
- If the suit is not prosecuted within six months, it shall stand dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 493 OF 2013
ELIZABETH ANNE BUKUSI ..............PLAINTIFF
-VERSUS-
LUBANO KIZITO................................DEFENDANT
RULING
This matter was on the 11th day of March, 2019 listed for notice to show cause why it should not be dismissed for want of prosecution. On the said date, counsels for the respective parties sought leave of the court to file their affidavits in response to the said notice and it was put off to the 1st day of July by which date, parties had done the needful.
The court has considered the affidavits as filed. In his affidavit, counsel for the plaintiff has averred that since the matter was certified ready for hearing on the 4th day of December, 2017, his clerk had difficulties in tracing the court file which, according to him, was occasioned by the renovations to the civil registry which were ongoing then.
He has annexed a copy of the letter dated the 15th day of November, 2018 to the Deputy Registrar in which, he sought her assistance in tracing the court file to enable him set down the matter for hearing.
He averred that before he could receive a response from the Deputy Registrar the matter was listed for notice to show cause. He stated that the notice was issued without taking into account his letter to the Deputy Registrar seeking assistance in trying to locate the file. He contends that the plaintiff is ready, vigilant and willing to prosecute the matter to its logical conclusion. He further states that if the matter is dismissed, his client will suffer a lot of prejudice.
On the part of the defendant, he has supported the dismissal and has filed a replying affidavit sworn by Haggai Okeyo Advocate, who is on record for him. He avers that contrary to what the plaintiff contends, he never attempted to set down the matter for hearing after it was certified ready for hearing. He stated that the plaintiff has not provided proof of trying to set down the suit for hearing.
He averred that at no time was the registry closed for renovations but that the normal operations in the registry were going on. He stated that the letter to the Deputy Registrar was done almost a year after the matter was certified as ready for hearing and the same was done after the plaintiff realized that the matter would be dismissed for want of prosecution.
He concluded by stating that the plaintiff has never been ready and willing to prosecute the matter and has offered no credible explanation for the delay in prosecuting the same. That the lax manner of handling the suit by the plaintiff negates the overriding objective of expeditious resolution of dispute as provided for under Order 1A of the Civil Procedure Rules.
The court has considered the contents of the respective affidavits and in particular the reason given by the plaintiff for her failure to prosecute the matter. The court has also perused the record of the court and I note that the matter has been fairly active but the parties were pre-occupied in pre-trials until the 4th day of December, 2017 when it was certified ready for hearing.
No action was taken in the matter from that date as a consequence of which the matter was listed for notice to show cause.
The court has noted the sentiments by the counsel for the defendant in regard to the delay in prosecuting the matter. In my view the delay and especially between the last time it was in court and the notice to show cause, has been explained. The letter to the Deputy Registrar was done on 15th November, 2018 which was before it was so listed.
In the interest of justice, the court will spare the suit and in view of the age of the matter, order that the same be prosecuted within six months from the date hereof, failing which, it shall stand dismissed.
Dated, signed and delivered at NAIROBI this 18TH day of JULY, 2019.
…………………………..
L. NJUGUNA
JUDGE
In the presence of:
……………………………. Plaintiff
……………………………. Defendant