[2016] KEHC 32 (KLR)
The court found that while there had been a period of inactivity exceeding one year before the application for dismissal was filed, the last recorded activity was on 4th February 2015, which was only about 48 days outside the prescribed one-year period. The plaintiffs had demonstrated their willingness to prosecute...
Source-derived case information.
- Citation
- [2016] KEHC 32 (KLR)
- Parties
- Plaintiff: Hamadi Murithi Munyi, Ali Abdulajid Ahmed, Abdul Karuri Mwangi, Abdallah Waititu Iddi, Issa Mohamed Mohammeed Abdi, Abdi Mohammed Mbithuka (suing on behalf of themselves and Pumwani Riadha Mosque Committee); Defendant: Chase Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 59 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal dismissed with conditions
- Judges
- F Tuiyott
- Legal Topics
- Dismissal for Want of Prosecution, Order 17 Rule 2, Delay in Prosecution, Grounds of Opposition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hamadi Murithi Munyi, Ali Abdulajid Ahmed, Abdul Karuri Mwangi, Abdallah Waititu Iddi, Issa Mohamed Mohammeed Abdi, Abdi Mohammed Mbithuka (suing on behalf of themselves and Pumwani Riadha Mosque Committee)
Plaintiff
Chase Bank Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether the plaintiffs have shown sufficient cause for the delay in prosecuting the suit.
Ratio Decidendi
The court found that while there had been a period of inactivity exceeding one year before the application for dismissal was filed, the last recorded activity was on 4th February 2015, which was only about 48 days outside the prescribed one-year period. The plaintiffs had demonstrated their willingness to prosecute the case and provided a reasonable explanation for the delay, including efforts to secure a hearing date and the absence of their advocate on the last scheduled hearing. The court exercised its discretion to allow the suit to proceed, subject to conditions, as the delay was not inordinate and the plaintiffs had shown sufficient cause for the inaction.
Court Disposition
application for dismissal dismissed with conditions
Orders
- Plaintiffs to pay the defendant costs of the dismissed application within 14 days of agreement or taxation of costs.
- Plaintiffs to fix the matter for hearing within 30 days of the ruling.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMDIRALTY DIVISION
HCC NO.59 OF 2012
HAMADI MURITHI MUNYI
ALI ABDULAJID AHMED
ABDUL KARURI MWANGI
ABDALLAH WAITITU IDDI
ISSA MOHAMED MOHAMMEED ABDI
ABDI MOHAMMED MBITHUKA(suing on behalf of themselves
And Pumwani Riadha Mosque Committee)....................PLAINTIFFS
Versus
CHASE BANK LIMITED...........................................DEFENDANT
RULING
1. The Provisions of Order 17 Rule 2 of The Civil Procedure Rules are on dismissal of Suits for want of Prosecution and reads:-
“2(1)) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2)If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
(4) The court may dismiss the suit for non-compliance with any direction given under this Order”.
2. Whether it is on its own motion or at the instance of a Party, the Court will only proceed to dismiss a suit for want of Prosecution if it is satisfied that,
i. No application has been made or step taken by either party for one year , and
ii. If no good cause is shown for the inaction.
3. The Defendant has moved Court through the Notice of Motion of 18th March 2016 seeking the Dismissal of the suit for the reason that the matter had been last in Court on 6th November 2014 and the Suit had since been dormant. While it is true that the suit had been inactive for over one year by the date of Application, the last activity was on 4th February 2015 (and not 6th November 2014) when Counsel for the Defendant invited that of the Plaintiff for a meeting of their representatives on 12th February 2015 for purposes of fixing a hearing date.
4. There is however no entry in the Court file as to what, if anything, took place on 12th February 2015.
5. The Plaintiff opposed the Application by filing Grounds of Opposition dated 13th May 2016 and a Replying Affidavit of Abdul Karuri Mwangi sworn on even date. He says that he and his Co-Plaintiffs were present in Court on 6th November 2014 when the matter was due for hearing but hearing could not proceed as their previous advocate Mr. Kibe Mungai was away attending a matter before the Court of Appeal.
6. That after this the Plaintiffs visited the Chambers of their previous advocates on several occasions inquiring about the next hearing date but were told that the Court diary for the year 2015 was full and that the Advocates were making efforts to have the matter heard in 2016. They were therefore surprised when confronted with the current Application for dismissal.
7. This Court accepts the explanation by the Plaintiffs and will give them a chance to prosecute the case. In giving this respite to the Plaintiffs the Court bears in mind the following:-
i. The Plaintiffs were in Court on 6th November 2014 when the matter was due for hearing.
ii. The Plaintiffs have affirmed their willingness to prosecute their case.
iii. Although there was inactivity for more than one year before the Application was filed on 18th March, 2016, the last activity was on 4th February 2015 which would be about 48 days outside the appointed time of one year. In that sense the file may not have been dormant for an inordinately long time.
8. But even as I dismiss the Motion of 18th March 2016, I impose the following conditions:-
i. The Plaintiffs shall pay the Defendant costs of the Dismissed Application within 14 days of the agreement or taxation of the Costs.
ii. The Plaintiffs shall within 30 days of this Ruling have this matter fixed for hearing.
iii. In default of either of the above conditions, the suit shall stand dismissed without need for any further Order of the Court.
Dated, Signed and Delivered in Court at Nairobi this 10th day of February,2016.
F. TUIYOTT
JUDGE
PRESENT;
Okeyo for Mbugua Mureithi for Plaintiff
Mathenge for Defendant
Alex - Court Clerk