[2013] KEHC 250 (KLR)
The court found that while the defendant failed to file his list of documents as previously ordered, this default did not automatically warrant the drastic remedies of striking out the defence or dismissing the counterclaim. The court noted that the plaintiff had already taken a hearing date after the order in...
Source-derived case information.
- Citation
- [2013] KEHC 250 (KLR)
- Parties
- Plaintiff: Elizabeth Claire Wright; Defendant: Sirya Mwarua Mwaitha
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 66 of 2005
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Applications
- Outcome
- Defendant's application marked as withdrawn; suit to proceed to hearing.
- Judges
- CW Meoli
- Legal Topics
- Striking Out of Pleadings, Discovery Non Compliance, Dismissal for Want of Prosecution, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Claire Wright
Plaintiff
Sirya Mwarua Mwaitha
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the defendant's defence should be struck out and counterclaim dismissed for failure to comply with discovery orders.
- 2 Whether the defendant's application for dismissal of the suit for want of prosecution should be struck out as an abuse of process.
- 3 Whether the matter should proceed to hearing despite alleged non-compliance with previous court orders.
Ratio Decidendi
The court found that while the defendant failed to file his list of documents as previously ordered, this default did not automatically warrant the drastic remedies of striking out the defence or dismissing the counterclaim. The court noted that the plaintiff had already taken a hearing date after the order in question, indicating that the order was not the sole bar to progress. The defendant's indication that he had no further documents to file and his abandonment of the dismissal application led the court to conclude that the appropriate course was to mark the defendant's application as withdrawn and direct the suit to proceed to hearing, as all necessary preliminaries had been complied...
Court Disposition
Defendant's application marked as withdrawn; suit to proceed to hearing.
Orders
- The Defendant's application filed on 30th September, 2009 is marked as withdrawn.
- This suit is to forthwith proceed to hearing as all preliminaries have been complied with.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL SUIT NO. 66 OF 2005
ELIZABETH CLAIRE WRIGHT …............................PLAINTIFF
VERSUS
SIRYA MWARUA MWAITHA …..........................DEFENDANT
RULING
On 21st May, 2008 this suit came before Ombija J. for mention to confirm that issues had been filed by parties as previously ordered by the judge on 27th February, 2008. Upon confirming that issues had indeed been filed Ombija J. directed as follows:
“A hearing date to be taken in the registry after order X r 11(a) has fully been complied with”.
The Plaintiff has now approached the court under certificate of urgency seeking vide her application of 11th April, 2013 that the defence be struck out and the counterclaim be dismissed. The reason being that the Defendant has failed to comply with the court's order of 21st May, 2008. The Plaintiff also seeks to strike out the Defendant's application for dismissal of the suit for want of prosecution, filed on 30th September, 2009.
The Plaintiff's application is expressed to be brought under Section 1A, B, 3A of the Civil Procedure Act and Order 17 rule 2 of the Civil Procedure Rules. The plaintiff contends that the said application is an abuse of court process as the Defendant has failed to file his list of documents despite the court's order and notice by the Applicant's advocate.
In reply, the Defendant asserts that the Plaintiff's application is not warranted. He contends that the subject order is not a bar to the matter proceeding and that in any event he has no desire to put in any further documents or to prosecute the dismissal application.
Parties filed written submissions which I have considered alongside the affidavits and record of the proceedings herein.
There is no doubt that this is a very old case. It is not entirely believable that the order of 21st May, 2008 has been the sole bar to the Plaintiff setting it down for hearing. Indeed such a hearing date had been taken in the registry for 15th July, 2008 subsequent to the said order. That is not to say that the Defendant is not obligated to facilitate discovery as per the court's order. His default in so doing in my view does not automatically attract the penalty of dismissal of his counterclaim or striking out of his defence. These are drastic orders of last resort.
7. The Defendant now having indicated that he has no further documents to file and eschewed the prosecution of his dismissal application, I think the prudent orders to make in the interest of justice are as follows:
The Defendant's application filed on 30th September, 2009 is marked as withdrawn.
This suit is to forthwith proceed to hearing as all preliminaries have been complied with.
The primary subject matter of the suit is the ownership of land parcel no. LR KILIFI/JIMBA/1213 the motor vehicles having already been released to the Plaintiff by order of Ouko J. made on 14th December, 2005.
In light of 3 above, I direct that this suit be mentioned before the Environment and Land Court on 28th November, 2013 for taking of early hearing dates.
Costs will be in the cause.
Delivered and dated at Malindi this 25th day of November, 2013
in the presence of
Court clerk – Samwel
C. W. Meoli
JUDGE