[2011] KEHC 936 (KLR)
The court found that although there was delay in prosecuting the suit, the delay was not entirely attributable to the plaintiff. The court acknowledged that administrative instructions prioritized older cases for hearing, which contributed to the delay. The court took responsibility for the backlog and...
Source-derived case information.
- Citation
- [2011] KEHC 936 (KLR)
- Parties
- Plaintiff: Hezekiah Njoka; Defendant: Joseph Muriuki Muriithi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezekiah Njoka
Plaintiff
Joseph Muriuki Muriithi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the plaintiff is to blame for the delay in setting the suit for hearing.
Ratio Decidendi
The court found that although there was delay in prosecuting the suit, the delay was not entirely attributable to the plaintiff. The court acknowledged that administrative instructions prioritized older cases for hearing, which contributed to the delay. The court took responsibility for the backlog and administrative directions, concluding that the plaintiff should not be penalized for circumstances beyond his control. Consequently, the application for dismissal for want of prosecution was declined, and the parties were urged to comply with the new Civil Procedure Rules to facilitate the hearing of the matter.
Court Disposition
application dismissed
Orders
- The application dated 1/10/2010 is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL CASE NO. 1 OF 2009
HEZEKIAH NJOKA………….………………………...…………………..PLAINTIFF
VERSUS
JOSEPH MURIUKI MURIITHI….…………........……………………….. DEFENDANT
R U L I N G
This is the Applicant/Defendant’s Notice of Motion dated 1st October 2010 under Order 16 rule 5 (Old Civil Procedure Rules) for dismissal of the Plaintiff’s suit for Want of Prosecution. In his grounds and supporting affidavit he explains that this suit was filed in February 2009. And since the filing of the Defence the Plaintiff has never taken steps to set down the suit for hearing. To him this is inordinate delay and the suit ought to be dismissed.
In his Replying Affidavit the Respondent/Plaintiff opposes the application saying he is not to blame for the delay. He says the court was only listing old cases of 2003 for hearing.
There is no dispute that this case was instituted in February 2009.
I have looked at the record and noted that the new Civil Procedure Rules have not been complied with.
Secondly I do confirm that for administrative purposes and backlog of cases there were instructions that only very old matters be given priority in the fixing of hearing dates.
The Plaintiff/Respondent may therefore not be wholly to blame for the delay. The Court takes full responsibility.
Having said that much, I urge the parties herein to comply with the New Rules so that the matter can be sorted out and listed for hearing.
I therefore decline to grant the Orders sought and dismiss the Application dated 1/10/2010.
Costs in the Cause.
DATED, SIGNED AND DELIVERED AT EMBU THIS 17TH DAY OF NOVEMBER 2011.
H.I. ONG’UDI
JUDGE