[2016] KEHC 3355 (KLR)
The court found that the Plaintiff failed to comply with a clear directive issued by Justice Waweru to take out and serve summons to enter appearance within 21 days from 6th June 2013, and that more than three years had lapsed without compliance. The Plaintiff's explanations, including the claim that the court file...
Source-derived case information.
- Citation
- [2016] KEHC 3355 (KLR)
- Parties
- Plaintiff: Henry Muli Munguti (Suing on his own behalf and on behalf of Good Hope Rehabilitation Centre, formerly Hope Bell Education Centre); Defendant: Martin Mishrick, Jeniffer Otin & Francis Kieti (Sued on their own behalf and on behalf of Good Hope Rehabilitation Centre); Defendant: Registrar of Societies; Defendant: Kenya Commercial Bank
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 140 of 2013
- Procedural Posture
- Civil Case / Ruling on Motion to Dismiss for Want of Prosecution
- Outcome
- Suit dismissed for want of prosecution with costs to the 1st Defendants.
- Legal Topics
- Dismissal for Want of Prosecution, Order 11 Civil Procedure Rules, Summons to Enter Appearance
- 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
Henry Muli Munguti (Suing on his own behalf and on behalf of Good Hope Rehabilitation Centre, formerly Hope Bell Education Centre)
Plaintiff
Martin Mishrick, Jeniffer Otin & Francis Kieti (Sued on their own behalf and on behalf of Good Hope Rehabilitation Centre)
Defendant
Registrar of Societies
Defendant
Kenya Commercial Bank
Defendant
Procedural Posture
Civil Case / Ruling on Motion to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiff's failure to take steps to prosecute the case.
- 2 Whether the plaintiff's reasons for delay, including alleged non-compliance by the defendants with Order 11 and the court file's custody, are sufficient to prevent dismissal.
Ratio Decidendi
The court found that the Plaintiff failed to comply with a clear directive issued by Justice Waweru to take out and serve summons to enter appearance within 21 days from 6th June 2013, and that more than three years had lapsed without compliance. The Plaintiff's explanations, including the claim that the court file was in the custody of Justice Waweru and that the Defendants had not complied with Order 11, were found to be unconvincing and insufficient to justify the delay. The court held that the Plaintiff was not prevented from listing the case for hearing due to the Defendants' alleged non-compliance and that there was no plausible reason for the prolonged inaction. Consequently, the...
Court Disposition
Suit dismissed for want of prosecution with costs to the 1st Defendants.
Orders
- The motion dated 15th February 2016 is allowed as prayed.
- The suit is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 140 OF 2013
HENRY MULI MUNGUTI Suing on his own behalf
and on behalf of GOOD HOPE REHABILITAION
CENTRE (Formerly Hope Bell Education Centre
CERTIFICATE OF REGISTRATION
NO.26442 OF 20-3-2008)...................................................... PLAINTIFF
V E R S U S –
MARTIN MISCHRICK, JENIFFER OTIN & FRANCIS KIETI
(Sued on their own behalf and on behalf
GOOD HOPE REHABILITATION CENTRE CERTIFICATE
OF REGISTRATION NO.39956 OF 16-4-2013. .............1ST DEFENDANT
REGISTRAR OF SOCIETIES.............................................. 2ND DEFENDANT
KENYA COMMERCIAL BANK ............................................ 3RD DEFENDANT
RULING
1) Martin Mishrick, Jeniffer Otin and Francis Kieti, hereinafter referred to the 1st Defendants took out the motion dated 15th February 2016 in which they applied for this suit to be dismissed with costs for want prosecution. The motion is supported by the affidavit of their advocate Marione Kinango. When served with the motion, Henry Muli Munguti, the Plaintiff herein, filed the replying affidavit of his advocate, Philip Karanja Wachira to resist the same.
2) I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the motion. I have also considered the rival oral submissions. It is the submission of the 1st Defendants that the Plaintiff has refused, neglected and or otherwise failed to take any steps to prosecute this suit for a period of over eight months since the last court attendance. Mr. Kinango, learned advocate for the 1st Defendants stated that Hon. Mr. Justice Waweru issued an order directing the Plaintiff to take out and serve summons to enter appearance within 21 days from 6th June 2013 but the Plaintiff failed to heed that directive and now three years have lapsed since the directive was issued. The Plaintiff was accused of delaying to take the relevant steps to have the suit ready for hearing.
3) The Plaintiff on the other hand has opposed the motion claiming the same lacks merit and is based on falsehoods and technicalities. The Plaintiff alleged that the 1st Defendants have failed to comply with the provisions or Order 11 of the Civil Procedure Rules hence preventing the Plaintiff from listing the suit for hearing. The Plaintiff pointed out the number of times he has caused the matter to be mentioned at the registry to fix the same for hearing. It is also said that the 1st Defendants objected to the matter being fixed for hearing because summons to enter appearance had not been taken out and served as per the directive of Mr.Justice Hatari Waweru. The Plaintiff further alleged that the court file has all along been with Justice Waweru hence his inability to collect summons.
4) I have carefully considered the rival oral submissions plus the material placed before this court. It is not denied that Justice Waweru issued order directing the Plaintiff to take out and serve summons to enter appearance within 21 days from 6. 6.2013. The Plaintiff admits he has done so. He avers that the court file was in the custody of Justice Waweru. I find the reason not plausible. There is no good reason why the court file could be retained by Justice Waweru. There was no pending ruling nor judgement. The Plaintiff has also alleged that since the 1st Defendants have not complied with Order 11 of the Civil Procedure Rules, he was unable to list the case for hearing. With respect, I find the reason to be flimsy. The Plaintiff cannot by any stretch of imagination be prevented from listing his case for hearing on the basis that a Defendant has not complied with order 11 of the Civil Procedure Rules.
5) In the end, I find the motion to be well founded. It is allowed as prayed with costs to the 1st Defendants.
Dated, Signed and Delivered in open court this 16th day of August, 2016.
J. K. SERGON
JUDGE
In the presence of:
......................................................... for the Plaintiff
.......................................................... for the Defendant