[2004] KEHC 2048 (KLR)
The court found that the plaintiff was not the author of the delay leading to the dismissal of the suit for want of prosecution. The delay was attributed to the plaintiff's apprehension, based on legal advice, that pursuing the suit against a sitting judge would be futile due to perceived judicial immunity. The...
Source-derived case information.
- Citation
- [2004] KEHC 2048 (KLR)
- Parties
- Plaintiff: Homeveg Exporters Ltd; Defendant: Kasanga Mulwa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 999 of 1996
- Procedural Posture
- Civil Case / Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application allowed; dismissal set aside; suit reinstated.
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Judgment, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Homeveg Exporters Ltd
Plaintiff
Kasanga Mulwa
Defendant
Procedural Posture
Civil Case / Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the judgment dismissing the suit for want of prosecution should be set aside.
- 2 Whether the plaintiff is entitled to reinstatement of the suit despite the lapse of the limitation period.
Ratio Decidendi
The court found that the plaintiff was not the author of the delay leading to the dismissal of the suit for want of prosecution. The delay was attributed to the plaintiff's apprehension, based on legal advice, that pursuing the suit against a sitting judge would be futile due to perceived judicial immunity. The court accepted that the plaintiff took the earliest opportunity to rectify the situation once the impediment was removed. Given that the claim was now statute-barred and the plaintiff could not file a fresh suit, the court held that it was fair and just to set aside the dismissal and reinstate the suit, ensuring that the plaintiff was not unduly prejudiced by circumstances beyond...
Court Disposition
Application allowed; dismissal set aside; suit reinstated.
Orders
- The default judgment entered on 25th July 2003 dismissing the suit for want of prosecution is set aside.
- The suit is reinstated for hearing and determination.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI CIVIL CASE NO. 999 OF 1996
HOMEVEG EXPORTERS LTD …………………… PLAINTIFF
VERSUS
KASANGA MULWA …………………………………… DEFENDANT
RULING
This application is brought by way of a Chamber Summons under Order 21 Rule 22 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. In it the applicant seeks an order for the setting aside of a judgment entered herein on 25th July 2003 dismissing the applicant’s suit for want of prosecution. It is clear from the record that the suit was dismissed on the courts’ own motion under Order XVI Rule 6. The said rule provides that the Court may dismiss a suit in which no step has been taken by either party for a period of three years, with a view to proceeding with the suit, provided that the Plaintiff may bring a fresh suit subject to the law of limitation. The cause of action having arisen in 1995, the claim is clearly statute barred.
The Applicants blame their predicament on the fact that the Defendant was, at the time the suit was dismissed a powerful judge of this Court, a situation which caused a major apprehension that the suit would not, to use the applicants’ words “see the light of day”. They state, both in the face of Chamber Summons and in the Supporting Affidavit that the said apprehension was fuelled by the applicants legal representatives who advised against pursuing the claim while the Defendant was a judge of the High Court and “immune from civil actions due to privileges accorded to his office.”
The Plaintiff Applicant states that it was always keen to prosecute the suit. The applicant has annexed to the Supporting Affidavit correspondence exchanged between the applicant and its legal representatives to confirm this.
I find that the Plaintiff is not the author of its predicament herein and has taken the earliest opportunity to correct the same. As the Applicant has lost the opportunity to institute a fresh suit I consider it fair and just that it be given an opportunity to pursue its claim. I therefore allow this application and order that the default judgment entered on 25th July 2003 be and is hereby set aside and the suit reinstated. Costs in the cause.
Dated and Delivered at Nairobi this 24 th day of September 2004.
M.G. Mugo
Ag. Judge
In the pre sence of:
Obura & Company Advocates for the Plaintiff - Gichimu h/b for Ochieng
Mulwa & Mulwa Advocates for the Defendant – N/A