[2012] KEHC 5100 (KLR)
The court found that while there had been significant delay in prosecuting the suit, the delay was substantially attributable to the loss and subsequent reconstruction of the court file, as well as the absence of key pleadings and exhibits. The court determined that dismissing the suit at this stage would not serve...
Source-derived case information.
- Citation
- [2012] KEHC 5100 (KLR)
- Parties
- Plaintiff: James Njoroge Karuga; Defendant: Hannah Njoki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 713 of 1996
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed. Directions given for reconstruction of pleadings and hearing de novo.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Reconstruction of Court File, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Njoroge Karuga
Plaintiff
Hannah Njoki
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 prolonged inactivity by the plaintiff.
- 2 Whether the missing court file and exhibits justify the delay in prosecution and preclude dismissal at this stage.
Ratio Decidendi
The court found that while there had been significant delay in prosecuting the suit, the delay was substantially attributable to the loss and subsequent reconstruction of the court file, as well as the absence of key pleadings and exhibits. The court determined that dismissing the suit at this stage would not serve the interests of justice, given that both parties still occupy the disputed land and the core documents can be reconstructed. The court exercised its discretion to direct the parties to reconstruct the principal pleadings, exchange witness statements and issues, and prepare for a hearing de novo, rather than dismissing the suit for want of prosecution.
Court Disposition
Application for dismissal for want of prosecution dismissed. Directions given for reconstruction of pleadings and hearing de novo.
Orders
- Each party to put together the principal pleadings (plaint and defence), each to have its own set.
- Each party to produce certified copies of any documents they wish to rely on.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NUMBER 713 OF 1996
JAMES NJOROGE KARUGA….......................……. PLAINTIFF/RESPONDENT
V E R S US
HANNAH NJOKI………….....................................…..DEFENDANT/APPLICANT
RULING
Coram:Hon. Mwera J
Nyangau for the Plaintiff/Respondent
Thiga for Defendant/Applicant
Elisha Court Clerk
By the application dated 20. 9.11 the defendant seeks orders under Order 17 rule 2(3), Order 51 rule 1 of Civil Procedure Rules and Section 3A Civil Procedure Act:
i)that the suit herein be dismissed for want of prosecution.
That the plaintiff is not interested in the matter anymore because he has not taken any step to have it disposed of expeditiously. Having the case around, works injustice to the applicant.
It was stated in the supporting affidavit that this suit was filed on 21. 3.96. Kubo J heard it on 13. 7.05. There had been no further proceedings to the end. It was last in court on 26. 4.10 when the defendant made a successful application to have the file reconstructed. So if the matter has been pending for more than 15 years, the plaintiff must have lost interest in it. It should be dismissed.
The file does not seem to yield any papers in opposition but both sides submitted. Giving the background of the claim, the court was told that all arose from a boundary dispute between the plaintiff and the defendant who bought adjacent portions of land known as NYANDARUA/KINANGOP/599 from the deceased Peter Kahura. While the plaintiff sued to have the whole parcel of land, the defendant maintains that she bought and paid for her portion. Both parties occupy the land. If the plaintiff has a claim indeed it is his primary duty to set the suit down for hearing. He has not done so and no cogent reason has been given for that (see the case of Alice Mumbi Ng’ang’a Vs Danson Chege Ng’ang’a & Anr [2006] eKLR. Keeping the status quo puts the defendant in mental stress.
The plaintiff’s stand was that he filed grounds of opposition together with a replying affidavit herein. That Kubo J almost came to the end of the trial herein but the file went missing. It was reconstructed on the defendant/applicant’s application but she did not avail some important pleadings – to date. Exhibits tendered in evidence at the early hearing, cannot be found in the court registry, though the registry has not informed the parties whether they are lost or not. Then the plaintiff went into the operations of CPR 2010 which hardly sounded relevant in these proceedings.
It looks like all will be going in circles over this matter particularly on account of missing exhibits and/or that Kubo J partly heard the matter.
What the court deems prudent for the parties to do here is put together the principal pleadings – the plaint and the defence. Each side must have its set. Each side to produce certified copies of any documents they wish to rely on. If originals were tendered before Kubo J quite likely copies remained with the parties. They should exchange witness statements and sets of issues. The cause will be mentioned in 30 days from today for directions on hearing de novo. That way all will get out of this saga and proceed somewhere.
Each side to bear its own costs.
Delivered on 19. 01. 2012.
J. W. MWERA
JUDGE