[2006] KEHC 3155 (KLR)
The court found that it would be unjust to dismiss the plaintiff's suit when the inability to fix a hearing date was caused by the 1st to 3rd defendants' failure to pay adjournment fees, not by any inaction on the part of the plaintiff. The plaintiff had demonstrated attempts to move the case forward, including...
Source-derived case information.
- Citation
- [2006] KEHC 3155 (KLR)
- Parties
- Plaintiff: George Omondi; Defendant: Reilco Company Limited; Defendant: Metra Investments Limited; Defendant: Ratim Realtors Limited; Defendant: Herman N. Njama
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1612 of 1999
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Adjournment Fees, Delay in Prosecution, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Omondi
Plaintiff
Reilco Company Limited
Defendant
Metra Investments Limited
Defendant
Ratim Realtors Limited
Defendant
Herman N. Njama
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiff's delay in taking steps to prosecute the case.
- 2 Whether the failure to pay adjournment fees by the 1st to 3rd defendants justified the plaintiff's inability to fix a hearing date.
Ratio Decidendi
The court found that it would be unjust to dismiss the plaintiff's suit when the inability to fix a hearing date was caused by the 1st to 3rd defendants' failure to pay adjournment fees, not by any inaction on the part of the plaintiff. The plaintiff had demonstrated attempts to move the case forward, including fixing a hearing date and inviting the defendants to take a date. The application for dismissal was therefore dismissed, but the court cautioned the plaintiff to actively prosecute the suit going forward.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 13th January 2006 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit1612 of 1999
GEORGE OMONDI …………………………………................……………………..PLAINTIFF
VERSUS
REILCO COMPANY LIMITED…………………….…….........……………1ST DEFENDANT
METRA INVESTMENTS LIMITED………………….........……...……….2ND DEFENDANT
RATIM REALTORS LIMITED……………………........………………….3RD DEFENDANT
HERMAN N. NJAMA………………………………........…………...…….4TH DEFENDANT
R U L I N G
By a Notice of Motion brought under Order XVI Rule 5 (C) and (d) of the Civil Procedure Rules the 4th defendant seeks dismissal of the plaintiff’s suit for lack of prosecution.
The application is based on the grounds that it now more than one year since the suit was adjourned generally and the plaintiff has failed to take steps to prosecute this case. That the suit which was filed in 1999 has taken unduly long to conclude and the delay is prejudicing the 4th defendant.
This matter last appeared before court on 14th December 2004 when counsel for the 1st to 3rd defendants applied for an adjournment. All the other defendants, including the applicant did not oppose that application and plaintiff too did not oppose. The ground for seeking an adjournment was on the basis of some witnesses who were out of the country and on the basis that there is a criminal case going on relevant to this case.
The adjournment was granted and 1st and 3rd defendant was condemned to pay the court adjournment fees.
The plaintiff in his replying affidavit was able to show that this case was again fixed for hearing on 27th June 2005 but the same was not reflected in the court file for non-payment of adjournment fees by the 1st to 3rd defendants. There was another invitation to take a date addressed by plaintiff’s counsel to the defendant dated 20th May 2005.
It is in that background that he plaintiff was jolted by the 4th defendant’s application to dismiss the suit. I note that for the 4th defendant to be able to file the present application he had to pay the adjournment fee of kshs 1, 000/-.
I find that it would be unjust to condemn the plaintiff to a dismissal of this suit when the hearing date could not be obtained for lack of payment of adjournment fees by the 1st to 3rd defendant the application fails for that reason but being saved by those circumstances from a dismissal the plaintiff should not sit on his laurels. He needs to get on with this suit and concluded it, after all it was filed in 1999.
The ruling of this case is that the Notice of Motion dated 13th January 2006 is dismissed with no orders as to costs.
MARY KASANGO
JUDGE
Dated and delivered this 17th March 2006.
MARY KASANGO
JUDGE