[2014] KEHC 239 (KLR)
The court found that, despite the plaintiff's argument that obtaining a mention date constituted a step in the proceedings, there had been a period of almost two and a half years during which no substantive step was taken to prosecute the suit. The court was not persuaded by the plaintiff's explanation and noted...
Source-derived case information.
- Citation
- [2014] KEHC 239 (KLR)
- Parties
- Plaintiff: Francis Mbae Ndereba; Defendant: Stephen Murithi Mbijiwe; Defendant: Francis Kirimi Mbijiwe; Defendant: Julius Kiambi Mbijiwe; Defendant: Kimathi Mbijiwe; Defendant: Mwiti Mbijiwe; Defendant: Kinyua Mbijiwe
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 73 of 2010
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit not dismissed; directions issued for compliance and prosecution.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Order 17 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mbae Ndereba
Plaintiff
Stephen Murithi Mbijiwe
Defendant
Francis Kirimi Mbijiwe
Defendant
Julius Kiambi Mbijiwe
Defendant
Kimathi Mbijiwe
Defendant
Mwiti Mbijiwe
Defendant
Kinyua Mbijiwe
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 of the Civil Procedure Rules.
- 2 Whether the plaintiff had taken any step to prosecute the suit within the required period.
Ratio Decidendi
The court found that, despite the plaintiff's argument that obtaining a mention date constituted a step in the proceedings, there had been a period of almost two and a half years during which no substantive step was taken to prosecute the suit. The court was not persuaded by the plaintiff's explanation and noted that the requirements of Order 17 of the Civil Procedure Rules had not been met. However, considering the defendants' request to have their defence and counterclaim heard and in the interests of justice, the court exercised its discretion not to dismiss the suit for want of prosecution. Instead, the court issued directions for compliance with Order 11 of the Civil Procedure Rules...
Court Disposition
Suit not dismissed; directions issued for compliance and prosecution.
Orders
- Parties to fully comply with Order 11 Civil Procedure Rules within 60 days from the date of the ruling.
- Upon completion of compliance, the plaintiff to set down the suit for hearing within 30 days.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
INTHE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO. 73 OF 2010
FRANCIS MBAE NDEREBA............................................................................PLAITIFF
VERSUS
STEPHEN MURITHI MBIJIWE.........................................................1ST DEFENDANT
FRANCIS KIRIMI MBIJIWE.............................................................2ND DEFENDANT
JULIUS KIAMBI MBIJIWE...............................................................3RD DEFENDANT
KIMATHI MBIJIWE.............................................................................4TH DEFENDANT
MWITI MBIJIWE.................................................................................5TH DEFENDANT
KINYUA MBIJIWE..............................................................................6TH DEFENDANT
R U L I NG
This matter was heard on 21. 10. 2014 when parties were to show cause why the suit should not be dismissed for want of prosecution in terms of the requirements of order 17 of the Civil Procedure Rules.
Notice had properly been issued to the parties.
Miss Thibaru for the plaintiff stated that the notice to show cause had been improperly issued as before the notice was issued on 21st October, 2014, the plaintiff had gone to the registry on 28. 4.2014 and obtained a date for the suit to be mentioned on 28. 7.2014. According to her, a step had been taken less than one year before the notice was issued. I do not agree with her argument. The notice was for showing cause why the suit should not be dismissed as the parties had not taken any step, as envisaged by Order 17, CPR, between 16. 11. 2011 and 8. l4. 2014 when a mention date was obtained. This constituted a period of almost two and half years.
Mr. Kariuki holding brief for Miss E. Mwangi, for the defendants conceded that no step had been taken for over 2 years. He also pointed out that the plaintiff has not shown any cause regarding why he had not taken a hearing date. He, however, told the Court that the defendants had filed a defence and a counter claim and wished to have their part of the story heard. He pleaded for indulgence.
Having considered all the factors in this mater, I have reluctantly refused to exercise my discretion to have the suit dismissed for want of prosecution. I, however, issue the following directions:
The parties to fully comply with order 11 CPR within 60 days from the date for this ruling, failing which the Court may consider dismissing the suit for want of prosecution.
After completion of compliance, the Plaintiff to set down the suit for hearing within 30 days.
Costs shall be in the cause.
Delivered in Open Court at Meru this 24th day of October, 2014 in the presence of:
Cc. Daniel
Miss Thibaru for plaintiff
P. M. NJOROGE
JUDGE