[2019] KEHC 6867 (KLR)
The court found that although the delay in prosecuting the suit was prolonged and inordinate, the plaintiff provided a reasonable and excusable explanation for the delay, including being involved in a criminal trial. The court emphasized that both parties, including the defendants who had filed a counterclaim,...
Source-derived case information.
- Citation
- [2019] KEHC 6867 (KLR)
- Parties
- Plaintiff: James Muchene Ngei; Defendant: Joseph Gilbert Kibe; Defendant: BOC Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 680 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Libel and Slander, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Muchene Ngei
Plaintiff
Joseph Gilbert Kibe
Defendant
BOC Kenya Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the delay in prosecuting the suit is prolonged and inexcusable.
- 2 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 3 Whether the plaintiff has provided a reasonable explanation for the delay.
Ratio Decidendi
The court found that although the delay in prosecuting the suit was prolonged and inordinate, the plaintiff provided a reasonable and excusable explanation for the delay, including being involved in a criminal trial. The court emphasized that both parties, including the defendants who had filed a counterclaim, shared responsibility for the delay as they also had a duty to move the court for prosecution of their claim. The court exercised its discretion to decline dismissal of the suit, balancing the interests of justice and the need to avoid driving a party from the seat of justice without a hearing. The application for dismissal was therefore dismissed, with directions for the plaintiff...
Court Disposition
Application for dismissal for want of prosecution dismissed.
Orders
- The application for dismissal is dismissed.
- The plaintiff shall ensure the suit is prosecuted within 120 days from the date of this ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 680 OF 2002
JAMES MUCHENE NGEI...........................................PLAINTIFF/RESPONDENT
VERSUS
JOSEPH GILBERT KIBE..............................................................1ST DEFENDANT
BOC KENYA LIMITED..................................................................2ND DEFENDANT
RULING
This suit was filed on 22nd April, 2002 by the plaintiff against the defendants for damages for libel and slander alleged to have been committed against the plaintiff by the defendants. The defendants denied the plaintiffs claim in their defences. Subsequently issues were drawn and filed on 30th April, 2009. For over 10 years now, this suit has not been heard and finalised. The record shows that on 4th April, 2013 the defendants filed an application for the dismissal of the suit for want of prosecution. That application was withdrawn on 15th October, 2014. Thereafter the defendants filed yet another application dated 13th August, 2018 seeking the same orders and that is the subject of this ruling.
There is no explanation as to why from 15th October, 2014 when the earlier application was withdrawn, up to 28th September, 2018 when the present application was fixed for hearing, no action was taken. I have read the submissions by both counsel in this application. It is a cardinal principle of justice that the courts should be inclined to retaining a suit rather than dismissing the same.
In considering applications under Order 17 Rule 2 Of The Civil Procedure Rules the court has to inquire whether or not the delay is prolonged and inexcusable, and if it is, whether or not justice can be done despite such delay. It should always be appreciated that justice looks at both sides and therefore the interests of both parties must be considered. Underlining all these considerations is whether or not any prejudice may be visited upon either party, and therefore it is a delicate balance in considering this subject.
The discretion of the court shall be invoked cautiously. Delay must not be intentional, neither should it be an abuse of the court process. If the plaintiff can offer a reasonable explanation for the delay, then the suit should be maintained. If no explanation is offered, and the defendants establishe prejudice on their part, then the suit should not be maintained.
Another question is whether or not the plaintiff can be given an opportunity to remedy his default. The conduct of the parties, the nature of the claim and the circumstances as a whole must be considered. The court must also bear in mind that dismissal of a suit has the ultimate effect of driving a party from the seat of justice without a hearing. – see Mwangi S. Kimenyi vs Attorney General & Another (2014) e KLR, Ivita vs. Kyumbu (1984 KLR 441 and Moses Otyula vs. Children of God relieve Institute (2015) e KLR.
Having gone through the pleadings herein and considered the rival submissions and the authories cited I observe that the delay herein is prolonged and inordinate. I have then considered the explanation for the delay as set out by the plaintiff from his affidavit and annexures. Several intervening circumstances have been presented, including the charging of the plaintiff in a criminal trial, which must have consumed a lot of his time. The totality of the circumstances is that, the delay has been explained and therefore excusable.
The anxiety of the plaintiff should not be taken alone because the defendants must be equally anxious to have this matter finalised. The defendants raised a counter claim; they are therefore plaintiffs in that counter claim. They had a duty also to move the court for the prosecution of their claim. They are equally to blame for the delay.
Weighing one thing against the other and doing the best I can with the material before me, I decline to dismiss the suit as prayed; instead the application is dismissed with an order that the plaintiff shall ensure the suit is prosecuted within 120 days from the date of this ruling. The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 10th Day of April, 2019.
A.MBOGHOLI MSAGHA
JUDGE