[2013] KEHC 6903 (KLR)
The court found that although there had been a two-year delay in prosecuting the suit, the plaintiff provided a plausible explanation that the court file was unavailable at the registry, which is a recognized occurrence. The plaintiff also demonstrated readiness and willingness to proceed with the case. In the...
Source-derived case information.
- Citation
- [2013] KEHC 6903 (KLR)
- Parties
- Plaintiff: Euro Marine Industries Inc.; Defendant: Nation Media Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 660 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- Application to dismiss suit for want of prosecution declined.
- Judges
- REA Ougo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Order 11 Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Euro Marine Industries Inc.
Plaintiff
Nation Media Group Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to a two-year delay by the plaintiff.
- 2 Whether the plaintiff has provided a sufficient explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that although there had been a two-year delay in prosecuting the suit, the plaintiff provided a plausible explanation that the court file was unavailable at the registry, which is a recognized occurrence. The plaintiff also demonstrated readiness and willingness to proceed with the case. In the exercise of judicial discretion, the court declined to dismiss the suit for want of prosecution and instead granted the plaintiff an opportunity to comply with Order 11 within 60 days and to fix a hearing date. Costs were ordered to be in the cause.
Court Disposition
Application to dismiss suit for want of prosecution declined.
Orders
- Plaintiff to comply with the provisions of Order 11 within 60 days from the date of the ruling.
- Parties to proceed and fix a hearing date at the registry.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CENTRAL REGISTRY CIVIL DIVISION
CIVIL SUIT NO.660 OF 2005
EURO MARINE INDUSTRIES INC.…………………..….…PLAINTIFF.
VERSUS
NATION MEDIA GROUP LIMITED…………..…………..DEFENDANT.
RULING
The application before me is by the defendant it seeks to have the plaintiff’s suit dismissed for want of prosecution. Reasons being that the plaintiff has not taken any step to prosecute the suit for the last 2 years. I have read the affidavits filed by the parties. Indeed it has been 2 years since the parties were last in court. Mr. Bilings in his affidavit has explained that in 2011 they tried to fix the suit for hearing but they could not as the court file was not available. This is a possibility as am aware that at times a court file cannot be found at the court registry. He also states that the plaintiff is ready and willing to present the suit. I will give the plaintiff a chance to prosecute the suit. I therefore decline to grant the orders sought. Costs shall however be in the cause. Parties to proceed and fix a hearing date at the registry. Plaintiff to ensure that the provisions of order 11 are compiled within 60 days from today. Costs shall be in the cause.
Dated, signed and delivered this 10th day of December 2013
R. E. OUGO
JUDGE
In the presence of:-
………………………………….…………………………..For the Applicant
……………………………………………………………For the Respondent
………………………...…………………………………………..Court Clerk