[2019] KEHC 4867 (KLR)
The court found that although the suit had been dormant since 13th October, 2017, there was a pending application by the plaintiff's advocates to cease acting, which had not been heard due to the court file going missing. The court held that it would be reasonable and in the interest of justice to allow the...
Source-derived case information.
- Citation
- [2019] KEHC 4867 (KLR)
- Parties
- Plaintiff: Emmanuel Abung’ana Lubembe; Defendant: Afya Co-operative Society Limited; Defendant: Nation Media Group Limited; Defendant: The Standard Group
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 789 of 2007
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Application to dismiss suit for want of prosecution deferred; plaintiff's advocates to prosecute application to cease acting.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Application to Cease Acting, Court File Missing, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Abung’ana Lubembe
Plaintiff
Afya Co-operative Society Limited
Defendant
Nation Media Group Limited
Defendant
The Standard Group
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause 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 plaintiff's advocates should be allowed to prosecute their application to cease acting before the suit is dismissed.
Ratio Decidendi
The court found that although the suit had been dormant since 13th October, 2017, there was a pending application by the plaintiff's advocates to cease acting, which had not been heard due to the court file going missing. The court held that it would be reasonable and in the interest of justice to allow the advocates to prosecute their application to cease acting before making a determination on the notice to show cause for dismissal. Therefore, the court declined to dismiss the suit at this stage and directed that the application to cease acting be set down for hearing within 14 days, after which further directions would be given.
Court Disposition
Application to dismiss suit for want of prosecution deferred; plaintiff's advocates to prosecute application to cease acting.
Orders
- The plaintiff’s advocates shall have their application dated 11th October, 2017 set down for hearing within 14 days from the date of the ruling.
- The court shall give directions as to the hearing of the matter after the application is heard.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 789 OF 2007
EMMANUEL ABUNG’ANA LUBEMBE......................................PLAINTIFF
-VERSUS-
AFYA CO-OPERATIVE SOCIETY LIMITED.................1ST DEFENDANT
NATION MEDIA GROUP LIMITED...............................2ND DEFENDANT
THE STANDARD GROUP.................................................3RD DEFENDANT
RULING
1. The parties herein were issued with notices to show cause under Order 17, Rule 2 of the Civil Procedure Rules, on 11th March, 2019 requiring them to give reasons why the suit ought not to be dismissed for want of prosecution.
2. In reply, the affidavit sworn by Judy Madhana was filed on 31st May, 2019. Therein, the said deponent has urged this court not to dismiss the suit for the following reasons:
a) The firm of advocates representing the plaintiff had previously filed an application to cease acting in the matter on 11th October, 2017.
b) The aforesaid application is yet to be heard as the court file was reported as having gone missing.
c) It would be in the interest of justice to have the application allowed prior to dismissing the suit.
3. I have duly considered the averments laid out hereinabove. I have also perused the court record which shows that the suit was filed on 23rd November, 2007. It is also clear from the record that the said suit proceeded for hearing though it would appear only the plaintiff gave evidence sometime in 2015. The record indicates that the suit was last in court on 13th October, 2017 though there is no indication of what transpired on the said date.
4. It is my observation that an earlier notice to show cause was issued on 28th September, 2017 against the parties. When the same came up in court on 13th October, 2017 it was noted that the plaintiff’s advocates had filed the Motion to cease acting on the basis of lack of proper instructions from the client. It is apparent that the said Motion is yet to be heard or determined.
5. The plaintiff’s advocate, Judy Madhana, deponed that it was not possible to prosecute the application as the court file had gone missing.
6. I have gathered from the court file that the matter was last active in court on 13th October, 2017; no explanation has been given for the dormancy. Needless to say that I acknowledge the application to withdraw from acting and in the circumstances find it reasonable to grant the advocates an opportunity to prosecute the said application prior to making a determination on the notice to show cause.
7. Consequently, I make the following orders:
a) The plaintiff’s advocates shall have their application dated 11th October, 2017 set down for hearing within 14 days from today after which the court shall give directions as to the hearing of the matter.
Dated, signed and delivered at NAIROBI this 4TH day of July, 2019
.........................
L. NJUGUNA
JUDGE
In the presence of:
……………………………. for the Plaintiff
……………………………. for the 1st Defendant
……………………………. for the 2nd Defendant
……………………………. for the 3rd Defendant