[2019] KEHC 11257 (KLR)
The court found that the period of inactivity between the last court appearance on 30th August, 2016 and the filing of the application on 5th June, 2017 was less than one year. Therefore, the statutory threshold under Order 17 rule 2(1) for dismissal for want of prosecution had not been met. The application to...
Source-derived case information.
- Citation
- [2019] KEHC 11257 (KLR)
- Parties
- Plaintiff: Henry Ruhiu; Defendant: Mediamax Company Ltd; Defendant: Hon. Ferdinand Waititu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 358 of 2011
- Procedural Posture
- Civil Application / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order 17 Rule 2, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Ruhiu
Plaintiff
Mediamax Company Ltd
Defendant
Hon. Ferdinand Waititu
Defendant
Procedural Posture
Civil Application / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 rule 2(1).
- 2 Whether the period of inactivity met the statutory threshold for dismissal.
Ratio Decidendi
The court found that the period of inactivity between the last court appearance on 30th August, 2016 and the filing of the application on 5th June, 2017 was less than one year. Therefore, the statutory threshold under Order 17 rule 2(1) for dismissal for want of prosecution had not been met. The application to dismiss the suit was thus premature and could not be sustained.
Court Disposition
application dismissed
Orders
- The application dated 31st May, 2017 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HICH COURT CIVIL CASE NO. 358 OF 2011
HENRY RUHIU.............................................................PLAINTIFF/RESPONDENT
VERSUS
MEDIAMAX COMPANY LTD.............................1STDEFENDANT/APPLICANT
HON.FERDINAND WAITITU......................................................2NDDEFENDANT
RULING
1. The Application dated 31th May, 2017 by the 1st Defendant/ Applicant seeks orders that:
1. That this honourable court be pleased and dismiss the Plaintiff’s suit as against the 1st Defendant for want of prosecution.
2. That the costs of this suit and application be awarded to the 1st Defendant/Applicant in any event
2. The Applicant’s contention is that the Respondent has not taken any steps to prosecute this case for a period of over five (5) years. That the Respondent has also failed to comply with the directions issued by this court on 18th June, 2015. The Applicant fears that the continued delay is prejudicial to their case as their witnesses may become unavailable.
3. In the replying affidavit filed in opposition to the application, it is stated that the Applicant had previously filed a similar application, which they later withdrew. That the Respondent had severally requested for a date for directions and the Respondent’S counsel appeared in court on 11th July, 2016.
4. I have considered the application and the reply to the same. I have also considered the written submissions filed by both parties.
5. A perusal of the court record reflects that prior to the filing of the application at hand dated 31st May, 2017 and filed in court on 5th June, 2017, the suit was last in court on 30th August, 2016. By the time the application was filed on 5th June, 2017, the period of over one year had not yet lapsed.
6. Order 17 rule 2(1) provides:
“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.”
7. The suit herein is therefore not ripe for dismissal for want of prosecution. Consequently, the application is dismissed with costs.
Dated, signed and delivered at Nairobi this 8th day of April, 2019
B THURANIRA JADEN
JUDGE