[2011] KEHC 4241 (KLR)
The court found that the plaintiffs had failed to take appropriate action to prosecute the suit for about one year after their counsel withdrew, and that responsibility for prosecution ultimately rests with the plaintiffs. However, recognizing that the plaintiffs had now engaged new counsel and demonstrated renewed...
Source-derived case information.
- Citation
- [2011] KEHC 4241 (KLR)
- Parties
- Plaintiff: Jane Muthoni Kinyua & Others; Defendant: Rukuriri Tea Factory
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 17 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed. Plaintiffs granted final opportunity to prosecute suit within 90 days. Costs awarded to defendant.
- Judges
- GG Okwengu
- Legal Topics
- Dismissal for Want of Prosecution, Pretrial Procedure, Advocate Withdrawal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Muthoni Kinyua & Others
Plaintiff
Rukuriri Tea Factory
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 under Order XVI Rule 5(d) of the Civil Procedure Rules.
- 2 Whether the plaintiffs are solely to blame for the delay in prosecuting the suit after their advocate withdrew.
- 3 Whether the plaintiffs should be granted an opportunity to prosecute the suit despite the delay.
Ratio Decidendi
The court found that the plaintiffs had failed to take appropriate action to prosecute the suit for about one year after their counsel withdrew, and that responsibility for prosecution ultimately rests with the plaintiffs. However, recognizing that the plaintiffs had now engaged new counsel and demonstrated renewed interest in pursuing the matter, the court exercised its discretion to give them a final opportunity to prosecute the suit. The court ordered that all pretrial processes be finalized and the suit listed for hearing within 90 days, failing which the suit would likely face dismissal. Costs of the application were awarded to the defendant to compensate for the delay and...
Court Disposition
Application for dismissal for want of prosecution dismissed. Plaintiffs granted final opportunity to prosecute suit within 90 days. Costs awarded to defendant.
Orders
- Plaintiffs to finalize all pretrial processes and list the suit for hearing within 90 days from the date of the ruling.
- Plaintiffs to pay costs of the application to the defendant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL CASE NO. 17 OF 2004
JANE MUTHONI KINYUA & OTHERS……….…......................................................................................……..PLAINTIFFS
VERSUS
RUKURIRI TEA FACTORY……..………………...................................................................................……… DEFENDANT
R U L I N G
On 24th June 2008, Njeru, Nyaga & Co. Advocates who had been acting for the plaintiff in this matter, was granted leave to withdraw from acting for the plaintiff for reasons inter alia, that the plaintiff had neglected to issue sufficient instructions, and that there was a complete breakdown of communication between the plaintiffs and their advocate. About a year later on 15th June 2009, the Defendant moved the court under Order XVI Rule 5(d) of the Civil Procedure Rules seeking to have the plaintiff’s suit dismissed for want of prosecution. By then no action had been taken by the plaintiff from the time their counsel withdrew from the suit.
The plaintiff blames their former counsel for failing to update them on the position of the suit. The plaintiff claims that they have now engaged another counsel and are therefore willing to prosecute the suit.
I have carefully considered the application. It is evident that the plaintiffs have not taken appropriate action in the prosecution of the suit as no action has been taken for about 1 year. The plaintiffs cannot entirely shift blame by passing the buck to their counsel. It was in the plaintiffs’ interest to follow their claim and not just to sit back and await information from their counsel. Notwithstanding the above, the plaintiffs appear to have now woken up and have exhibited keen interest in the prosecution of the suit. I would therefore give the plaintiffs an opportunity to do so. However in order to ensure that the plaintiffs do not go to sleep again, I do hereby order that the plaintiffs shall finalize all pretrial process and have the suit listed down for hearing within 90 days from the date hereof.
The plaintiff shall further pay costs of the application to the Defendant.
Orders Accordingly.
H.M. OKWENGU
JUDGE
Delivered, dated and signed at Embu this 24th day of January 2011.
In presence of:-Gachuhi holding brief for Defendant/Applicant. Ms. Mucheru holding brief for Nwiga for the Plaintiff.