[2007] KEHC 3051 (KLR)
The court found that the delay in prosecuting the suit was not intentional or inexcusable on the part of the plaintiff. The evidence showed that the plaintiff was unaware of the status of his case due to a breakdown in communication with his former advocates, who failed to inform him or release the file. The court...
Source-derived case information.
- Citation
- [2007] KEHC 3051 (KLR)
- Parties
- Plaintiff: Gideon Moi; Respondent: British American Tobacco
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 776 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal dismissed; conditional order for expeditious prosecution of suit
- Judges
- CM Kariuki
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Advocate Client Breakdown
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gideon Moi
Plaintiff
British American Tobacco
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay exceeding three years.
- 2 Whether the delay in prosecuting the suit was intentional, inordinate, or inexcusable on the part of the plaintiff.
- 3 Whether the plaintiff should be penalized for the conduct of his former advocates.
Ratio Decidendi
The court found that the delay in prosecuting the suit was not intentional or inexcusable on the part of the plaintiff. The evidence showed that the plaintiff was unaware of the status of his case due to a breakdown in communication with his former advocates, who failed to inform him or release the file. The court held that dismissing the suit under these circumstances would unfairly penalize the plaintiff for his advocates' mistakes and would be unconscionable. The delay was satisfactorily explained, and the drastic remedy of dismissal was not warranted. The application for dismissal was therefore dismissed, but the plaintiff was ordered to fix the hearing within one month, failing which...
Court Disposition
application for dismissal dismissed; conditional order for expeditious prosecution of suit
Orders
- The Notice of Motion dated 12/1/06 is dismissed with no order as to costs.
- The Plaintiff is ordered to fix the hearing of the suit within one month from the date of this ruling, failing which the suit shall stand dismissed for want of prosecution.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal Case 776 of 2000
GIDEON MOI……………………...……………….…………. PLAINTIFF
VERSUS
BRITISH AMERICAN TOBACCO…...…….….………. RESPONDENT
R U L I N G
The Notice of Motion herein, dated 12/1/06, under Order 16 rule 5(d) of the Civil Procedure Rules, seeks dismissal of the suit for want of prosecution; then costs.
Supported by an Affidavit by Ruth Ngobi, filed on 13/4/06,but dated 13/4/06, the application is on the grounds that the suit which was filed on 22/9/99,and was last in court on 19/12/03, has not been prosecuted for over 3 years.
In opposition, the Plaintiff/Respondent avers that his relationship with his lawyers broke down in 2002, after the last general Elections, and since then, the then lawyers failed to keep the Respondent informed of what was happening. As a matter of fact, the previous Advocates refused to release the file to the Respondent – who did not know what was happening until 8/2/06 when he received a letter from the then Advocates informing him that they had ceased to act for him; and this was after this application for dismissal of the suit had been filed. Accordingly, the Respondent avers that he was blameless, and that the delay is explained.
After careful perusal of the pleadings herein, and consideration of the submissions by learned counsel for both sides, and reading of the authorities cited and relied up, especially by counsel for the Respondent, I have reached the following findings and conclusions.
Dismissal of a suit is a drastic action that should not be resorted to lightly. As held in SAGOO V. BHARIJ Civil Suit No. 657 of 1989 [1990] KLR, 459.
“It is not the practice of the courts to exercise the drastic power of dismissing a suit unless satisfied that there has been intentional, inordinate, or inexcusable delay on the part of the Plaintiff and that there is a risk that the delay would inhibit a fair trial or that would cause prejudice to the defendant.”
My perusal of the evidence before me does not in any way show that there was any intention on the part of the Respondent to delay prosecuting the suit herein. The evidence is that the Plaintiff/Respondent was not aware of what was happening about the case, which he had given to the lawyers, until he received the letter stating that the lawyers had ceased representing him. That was after this application for dismissal of the suit had been filed.
To dismiss the suit for want of prosecution, under the circumstances, would not only be victimizing the Respondent for the mistakes of his Advocates but also an unconscionable exercise of this court’s direction. The delay is explained to the satisfaction of this court.
Accordingly, I rule as under:
1. Dismiss the Notice of Motion herein, dated 12/1/06, with no order as to costs.
2. Order that the Plaintiff do move, with speed and fix the hearing of the suit herein, and at any rate within the next one month from today’s date, failing which the suit shall stand dismissed for want of prosecution.
DATED and delivered in Nairobi this 27th day of March, 2007.
O.K. MUTUNGI
JUDGE