[2013] KEHC 3776 (KLR)
The court found that the plaintiffs had failed to prosecute their defamation suit for nearly six years, and the explanation provided for the delay—namely, that their advocate had emigrated—was casual, lacking detail, and did not demonstrate any effort by the plaintiffs to follow up on their case. The court held that...
Source-derived case information.
- Citation
- [2013] KEHC 3776 (KLR)
- Parties
- Plaintiff: George Maigo Waweru; Plaintiff: Willy Waweru Maigo; Plaintiff: Daniel Nganga George; Defendant: Nation Media Group Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1016 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Defamation, Delay in Prosecution, Prejudice to Defendant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Maigo Waweru
Plaintiff
Willy Waweru Maigo
Plaintiff
Daniel Nganga George
Plaintiff
Nation Media Group Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the plaintiffs' suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the explanation for the delay in prosecuting the suit is sufficient to avoid dismissal.
- 3 Whether the defendant would be prejudiced by the continued pendency of the suit.
Ratio Decidendi
The court found that the plaintiffs had failed to prosecute their defamation suit for nearly six years, and the explanation provided for the delay—namely, that their advocate had emigrated—was casual, lacking detail, and did not demonstrate any effort by the plaintiffs to follow up on their case. The court held that such inordinate and unexplained delay would render a fair trial impossible and would prejudice the defendant. Accordingly, the court exercised its discretion to dismiss the suit for want of prosecution, finding that the plaintiffs had lost interest in the matter and that the defendant should not be subjected to indefinite uncertainty.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The 1st and 3rd plaintiffs' suit is dismissed with costs for want of prosecution.
- The 2nd plaintiff's suit abated upon his death.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Civil Case 1016 of 2003 [if gte mso 9]><![endif]
1. GEORGE MAIGO WAWERU
2. WILLY WAWERU MAIGO
3. DANIEL NGANGA GEORGE….………………..………..…...PLAINTIFFS
VERSUS
NATION MEDIA GROUP LTD.....................................................DEFENDANT
R U L I N G
1. This is an application by notice of motion dated 2nd September 2008 (filed on 19th May 2009!) for an order to dismiss the Plaintiffs suit with costs for want of prosecution. It was brought under the then in place Order XVI, rule 5(d) of the Civil Procedure Rules (the Rules). Under that rule, if within three months after the adjournment of the suit generally, the plaintiff, or the court of his its own motion on notice to the parties, did not set down the suit for hearing, the defendant could either set the suit down for hearing or apply for its dismissal.
2. The application is supported by the affidavit of one BARBARA LUNANI, the Defendant’s advocate.
3. There is a replying affidavit sworn by the 1st Plaintiff in opposition to the application. He says that the 3rd Plaintiff is his son while the 2nd Plaintiff was his father who died on 16th June 2004. He has also deponed that he instructed one KIHORO CERERE of Messrs Cerere, Mwangi & Co., Advocates to act for the Plaintiffs; that he has subsequently leant that Mr Cerere left Kenya and is now resident in the United States of America since the year 2004; and that he believes that the suit was not prosecuted due to the fact that the Plaintiff’s advocate was not in Kenya.
4. The Plaintiff’s suit is in defamation. The 2nd Plaintiff’s suit therefore died with him.
5. As for the 1st and 3rd Plaintiffs, they must have filed suit so that their good names and reputation could be vindicated as soon as possible. That was on 2nd October 2003! By 19th May 2009 when the present application was filed, the suit had remained unprosecuted, nearly 6 years later.
6. The 1st Plaintiff does not disclose in his replying affidavit when he or the 3rd Plaintiff leant that their advocate, Mr Cerere, had emigrated to the United States of America in 2004. Nor does he state whether he or the 3rd Plaintiff made any enquiries or follow-ups at the offices of their advocates regarding their case. The explanation offered in the replying affidavit for the inordinate delay is casual and not detailed enough as to merit acceptance. It appears to me that the Plaintiffs simply lost interest in the suit.
7. I am satisfiedthat the long delay in prosecuting this defamation suit will render a fair trial of the action impossible. The Defendant will be prejudiced, and the suit should not be allowed to continue hanging over its head.
8. In the circumstances I will allow the application. The 1st and 3rd Plaintiffs’ suit is dismissed with costs for want of prosecution. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF MAY 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 3RD DAY OF MAY 2013
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