[2018] KEHC 3685 (KLR)
The court found that the plaintiff's delay in prosecuting the suit was explained by the inability to trace his advocate, who was avoiding arrest, and that the delay was not deliberate. Given the draconian nature of dismissal for want of prosecution and the principle that courts should sustain suits where the...
Source-derived case information.
- Citation
- [2018] KEHC 3685 (KLR)
- Parties
- Plaintiff: Gideon Njoroge Muigai; Defendant: Edward Mwigai; Defendant: Patrick Mugi Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 562 of 2014
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed.
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Judicial Discretion, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gideon Njoroge Muigai
Plaintiff
Edward Mwigai
Defendant
Patrick Mugi Kamau
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 delay by the plaintiff.
- 2 Whether the plaintiff's explanation for the delay is sufficient to avoid dismissal.
- 3 Whether the interests of justice require the suit to be sustained.
Ratio Decidendi
The court found that the plaintiff's delay in prosecuting the suit was explained by the inability to trace his advocate, who was avoiding arrest, and that the delay was not deliberate. Given the draconian nature of dismissal for want of prosecution and the principle that courts should sustain suits where the interests of justice so require, the court exercised its discretion to refuse dismissal. The plaintiff was therefore afforded an opportunity to prosecute his suit, and the application for dismissal was dismissed with costs in the cause.
Court Disposition
Application for dismissal for want of prosecution dismissed.
Orders
- The notice of motion dated 28th March 2018 is dismissed.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 562 OF 2014
GIDEON NJOROGE MUIGAI..............................PLAINTIFF/RESPONDENT
- VERSUS -
EDWARD MWIGAI..........................................1ST DEFENDANT/APPLICANT
PATRICK MUGI KAMAU......................................................2ND DEFENDANT
RULING
1. 1st defendant by the notice of motion dated 28th March 2018, seeks dismissal of this case for want of prosecution.
2. The plaintiff filed this case on 13th August 2014. The 1st defendant filed his defence on 23rd September 2014. There is no evidence in the court file that the 2nd defendant filed his defence even though he participated in the interlocutory applications in this matter.
3. By the ruling dated 3rd November 2016, this court dismissed the 1st defendants application whereby the 1st defendant sought to be struck out of this suit. After that ruling, there was no further action in this matter until the 1st defendant filed the notice of motion dated 28th March 2018which is under consideration, for the dismissal of this suit for want of prosecution.
4. The plaintiff by the replying affidavit oppose the application on the ground that there were matters beyond his control which prevented him from proceeding with the matter since the year 2016. The plaintiff deponed that from 2016 to 20th May 2018, his then advocate Manwa Mabeya could not be traced by him because he was avoiding arrest by the police. That it was not until the said advocate was arrested that the plaintiff traced him and obtained his file which was at the said advocates home. The plaintiff therefore stated that the delay in prosecuting this suit was not deliberate. He deponed that he was ready to proceed with this matter and requested he be afforded a chance to do so.
5. Since what is deponed by the plaintiff, that his then advocate was a fugutive of the law, and because the power to dismiss a suit, just like the power to strike out pleadings is draconian and because the courts, where the interest of justice require it, should look to sustain a suit, I am of the view that the plaintiff should be given an opportunity to prosecute his suit.
6. Accordingly, the notice of motion dated 28th March 2018 is dismissed but the costs thereof shall be in the cause. The plaintiff should proceed to expediate the hearing of this suit.
DATED, SIGNED and DELIVERED at NAIROBI this 20th day of September, 2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of
Court Assistant....................Sophie
........................................... for the Plaintiff
........................................... for the Defendants
MARY KASANGO
JUDGE