[2005] KEHC 1231 (KLR)
The court found that the delay in prosecuting the suit was reasonably explained by the Plaintiff, who faced difficulties in obtaining the case files from previous advocates due to a fee dispute. The Plaintiff took steps to set the matter down for hearing upon obtaining the files. Additionally, the 1st Defendant also...
Source-derived case information.
- Citation
- [2005] KEHC 1231 (KLR)
- Parties
- Plaintiff: Harbinder Singh Sethi; Defendant: Robert J. Wilhelm; Defendant: Leopard Systmes Inc.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2929 of 1997
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Excusable Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Harbinder Singh Sethi
Plaintiff
Robert J. Wilhelm
Defendant
Leopard Systmes Inc.
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 delay in prosecuting the suit was excusable under the circumstances.
Ratio Decidendi
The court found that the delay in prosecuting the suit was reasonably explained by the Plaintiff, who faced difficulties in obtaining the case files from previous advocates due to a fee dispute. The Plaintiff took steps to set the matter down for hearing upon obtaining the files. Additionally, the 1st Defendant also contributed to the delay by failing to file a notice of change of advocates until February 2005. The court held that both parties were equally to blame for the delay, and it would be unjust to dismiss the suit for want of prosecution in these circumstances. The application for dismissal was therefore dismissed, and the Plaintiff was directed to take steps to obtain a hearing...
Court Disposition
application dismissed
Orders
- The application for dismissal of the suit for want of prosecution is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Civil Suit 2929 of 1997
HARBINDER SINGH SETHI ……………..…………………………….. PLAINTIFF VERSUS ROBERT J. WILHELM …………………………………………… 1ST DEFENDANT LEOPARD SYSTMES INC. ………………………………………. 2ND DEFENDANT
RULING
In this application dated 8th February, 2005, and brought under Order 16 Rule 5 of the Civil Procedure Rules, the 1st Defendant/Applicant seeks orders that this suit be dismissed for want of prosecution.
This is an old 1997 case. The pleadings closed in April 2001. The Applicant says that the Respondent/Plaintiff has taken no steps since then to set it down for hearing. The Respondent says that its current advocate came on record in November 2001, and was unable to obtain the files from the Respondent’s previous advocates, because of a dispute relating to fees, until November 2004, when it attempted to set the case down for hearing. However, the Applicant’s own advocates had changed, and a notice of change was served on the Respondent only in February, 2005 which is exactly when this application for dismissal of the suit was filed.
I am satisfied with the explanation of delay provided by the Respondent. It is reasonable, and the delay is excusable. The Applicant himself was indolent, and did not file a notice of change of his advocates until February 2005. In the circumstances, both parties are equally to blame for delay, and it would be highly unjust to remove a party from the seat of justice on account of the events that have been outlined by the Applicant.
Accordingly, I would dismiss this application, with no order as to costs, and direct that the Plaintiff take steps to obtain a hearing date within the next 30 days.
Dated and delivered at Nairobi this 23rd day of November, 2005.
ALNASHIR VISRAM
JUDGE