[2007] KEHC 638 (KLR)

[2007] KEHC 638 (KLR)

The court found that while there had been inordinate delay in prosecuting the suit, the plaintiffs provided a credible and satisfactory explanation for the delay, including financial constraints, reliance on pro bono counsel, and logistical difficulties. The court held that dismissing a suit unheard should be a last resort and that justice required giving the plaintiffs another opportunity to prosecute their case. The application for dismissal was therefore refused, but costs were awarded to the defendants, and the plaintiffs were ordered to take demonstrable steps towards setting down the suit for hearing within 30 days, failing which the suit could be dismissed without further application.

Citation
[2007] KEHC 638 (KLR)
Parties
Plaintiff: Jacob Mwongo; Plaintiff: Raphael Marete; Plaintiff: Charles Kibaya; Plaintiff: Julius Kibutha; Plaintiff: Joseph K. Maingi; Plaintiff: Salesio Mugambi Ngeera; Plaintiff: Lawrence M’Ikiao (suing on their own behalf and on behalf of all other active small-holder tea growers delivering green tea leaf for collection at Thanantu Tea Buying Centre No.TN 09); Defendant: Kenya Tea Development Authority; Defendant: Michimukuru Tea Factory Co. Ltd.
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
14 September 2007
Case Number
Civil Case 208 of 2000
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Outcome
Application for dismissal refused; costs awarded to defendants; plaintiffs ordered to take steps to set down suit for hearing within 30 days.
Legal Topics
Dismissal for Want of Prosecution, Inordinate Delay, Excusable Delay, Costs Award
Source Language
English
Civil Procedure Dismissal for Want of Prosecution Inordinate Delay Excusable Delay Costs Award

Case Brief

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Parties

Jacob Mwongo

Plaintiff

Raphael Marete

Plaintiff

Charles Kibaya

Plaintiff

Julius Kibutha

Plaintiff

Joseph K. Maingi

Plaintiff

Salesio Mugambi Ngeera

Plaintiff

Lawrence M’Ikiao (suing on their own behalf and on behalf of all other active small-holder tea growers delivering green tea leaf for collection at Thanantu Tea Buying Centre No.TN 09)

Plaintiff

Kenya Tea Development Authority

Defendant

Michimukuru Tea Factory Co. Ltd.

Defendant

Procedural Posture

Civil Case / Ruling on Application for Dismissal for Want of Prosecution

Legal Issues

  1. 1 Whether the plaintiffs' suit should be dismissed for want of prosecution under Order 16, rule 5(a) of the Civil Procedure Rules.
  2. 2 Whether the delay in prosecuting the suit was inordinate and inexcusable.
  3. 3 Whether the plaintiffs have provided a credible explanation for the delay.

Ratio Decidendi

The court found that while there had been inordinate delay in prosecuting the suit, the plaintiffs provided a credible and satisfactory explanation for the delay, including financial constraints, reliance on pro bono counsel, and logistical difficulties. The court held that dismissing a suit unheard should be a last resort and that justice required giving the plaintiffs another opportunity to prosecute their case. The application for dismissal was therefore refused, but costs were awarded to the defendants, and the plaintiffs were ordered to take demonstrable steps towards setting down the suit for hearing within 30 days, failing which the suit could be dismissed without further application.

Court Disposition

Application for dismissal refused; costs awarded to defendants; plaintiffs ordered to take steps to set down suit for hearing within 30 days.

Orders

  • The application by notice of motion dated 12th May, 2006 is refused.
  • Costs of the application assessed at KShs. 10,000 awarded to the defendants, payable within 30 days.