[2019] KEHC 5221 (KLR)
The court found that while the plaintiff's counsel made efforts to trace the missing court file by writing to the Deputy Registrar and annexing evidence of such correspondence, there was a significant period of inaction exceeding two years after the last letter was written. Despite this lapse, the court acknowledged...
Source-derived case information.
- Citation
- [2019] KEHC 5221 (KLR)
- Parties
- Plaintiff: Impressions Advertising Limited; Defendant: Digital Printing & Imaging Solutions Limited; Defendant: Timothy Njonjo Ngaruiya; Defendant: Sammy Thuo Juma; Defendant: Anthony Gathuri Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 403 of 2013
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
- Outcome
- Plaintiff granted final opportunity to prosecute case within four months; suit to stand dismissed if not prosecuted within that period.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court File Missing, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Impressions Advertising Limited
Plaintiff
Digital Printing & Imaging Solutions Limited
Defendant
Timothy Njonjo Ngaruiya
Defendant
Sammy Thuo Juma
Defendant
Anthony Gathuri Mwangi
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff has provided sufficient explanation for the delay in prosecuting the case.
- 2 Whether the matter should be dismissed for want of prosecution due to inactivity.
Ratio Decidendi
The court found that while the plaintiff's counsel made efforts to trace the missing court file by writing to the Deputy Registrar and annexing evidence of such correspondence, there was a significant period of inaction exceeding two years after the last letter was written. Despite this lapse, the court acknowledged the efforts made and, in the interest of justice, decided not to dismiss the suit outright. Instead, the court granted the plaintiff a final opportunity to prosecute the case within four months from the date of the ruling, failing which the suit would stand dismissed. The decision balanced the need for expeditious disposal of cases with the plaintiff's right to be heard, given...
Court Disposition
Plaintiff granted final opportunity to prosecute case within four months; suit to stand dismissed if not prosecuted within that period.
Orders
- The plaintiff shall prosecute the case within four months from the date of this ruling.
- If the plaintiff fails to prosecute the case within four months, the suit shall stand dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 403 OF 2013
IMPRESSIONS ADVERTISING LIMITED.....................PLAINTIFF
VERSUS
DIGITAL PRINTING & IMAGING
SOLUTIONS LIMITED............................................1ST DEFENDANT
TIMOTHY NJONJO NGARUIYA...........................2ND DEFENDANT
SAMMY THUO JUMA.............................................3RD DEFENDANT
ANTHONY GATHURI MWANGI...........................4TH DEFENDANT
R U L I N G
The matter herein was filed on the 20th day of September, 2013 together with the application dated the same date, which application was heard and determined by Waweru Judge vide a ruling dated 26th September, 2013.
After that, the next time the matter was in court was on 29th day of May, 2015 before it was listed for Notice to Show cause on 22nd February,, 2019.
When the matter was listed on 22nd February, 2019, counsel for the plaintiff sought leave to file an affidavit in response to the notice. The court has perused the affidavit and has noted the reason given by counsel for the plaintiff for non prosecution of the matter which is; that the court file was missing and could not be traced at the registry after the ruling of the court that was delivered on the 29th May, 2015.
Counsel has deponed that she did several letters to the Deputy Registrar seeking her assistance in tracing the file. The letters have been annexed to the affidavit aforesaid.
The court has noted that the letters were done between March, 2016 and November 2016 and they were all received at the registry and duly stamped. The last of those letters was done on 24th November, 2016 meaning that for more than two years, counsel did not follow up with the registry to find out if the file was ever traced.
Though the plaintiff has annexed letters for invitation to fix hearing dates, which were done in the year 2017, there is no indication as to whether the court file had been traced or not.
All in all, the court would like to appreciate the efforts that were put by counsel for the plaintiff in writing to the Deputy Registrar seeking assistance in tracing the file, without failing to note that, no explanation was given why no action was taken for more than two years since the last letter was written.
In the interest of justice, the court shall give the plaintiff an opportunity to prosecute his case and this being an old matter, an order is made that the same be prosecuted with four (4) months from the date hereof failing which, it shall stand dismissed.
Dated, signed and delivered at Nairobi this 18th day of JULY, 2019.
.....................
L. NJUGUNA
JUDGE
In the presence of
.................................for the Appellant.
........................... For the Respondents.