[2012] KEHC 1844 (KLR)
The court found that the delay of over one year after the suit was removed from the hearing list was inordinate and unexplained. The plaintiff failed to provide any justification for the delay, and the court was satisfied that a fair trial was no longer possible, resulting in prejudice to the defendant. The court...
Source-derived case information.
- Citation
- [2012] KEHC 1844 (KLR)
- Parties
- Plaintiff: Dr Japheth Munyithia Mwanthi; Defendant: Howard Carlson
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 767 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Plaintiff's suit dismissed for want of prosecution. Costs awarded to the defendant.
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Res Judicata, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr Japheth Munyithia Mwanthi
Plaintiff
Howard Carlson
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the principle of res judicata applies to bar the present application for dismissal.
- 3 Whether the delay has prejudiced the defendant and rendered a fair trial impossible.
Ratio Decidendi
The court found that the delay of over one year after the suit was removed from the hearing list was inordinate and unexplained. The plaintiff failed to provide any justification for the delay, and the court was satisfied that a fair trial was no longer possible, resulting in prejudice to the defendant. The court further held that the principle of res judicata did not apply because the present application was based on different circumstances from the previous application. The plaintiff's lack of interest in prosecuting the suit, as evidenced by his counsel's admission of lack of instructions, further supported the conclusion that the suit should be dismissed for want of prosecution.
Court Disposition
Plaintiff's suit dismissed for want of prosecution. Costs awarded to the defendant.
Orders
- The plaintiff's suit is dismissed for want of prosecution.
- The defendant shall have costs of the suit, including costs of the application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI
CIVIL CASE 767 OF 2003
DR JAPHETH MUNYITHIA MWANTHI.….....……………..…… PLAINTIFF
VERSUS
HOWARD CARLSON…………………..……..….…………... DEFENDANT
R U L I N G
1. The Defendant has applied by notice of motion dated 26th March 2008for dismissal of the Plaintiff’s case for want of prosecution. The application was brought under Order XVI, rule 5(C) of the then Civil Procedure Rules(the Rules). Under that provision, if, within three months after the removal of the suit from the hearing list, the plaintiff, or the court on its own motion on notice to the parties, does not set down the suit for hearing, the defendant may either set the suit down for hearing or apply for its dismissal.
2. I have read the supporting affidavit and grounds of opposition (no replying affidavit was filed). I have also perused the court record. Finally, I have given due consideration to the submissions of the learned counsels appearing.
3. A previous application to dismiss the Plaintiff’s suit (notice of motion dated 22nd August 2005) was refused in a considered ruling dated and delivered on 5th April 2006 (Osiemo, J) after the court found that the Plaintiff had explained the delay (which it found excusable) in prosecuting the suit since close of pleadings, and also that no prejudice was demonstrated by the Defendant. The Plaintiff was however condemned to pay costs of the application.
4. The Plaintiff has raised this refusal of the previous application for dismissal for want of prosecution as a defence (of res judicata) to the present application. But it is apparent that the present application has been brought under different circumstances. Whereas the previous application was brought upon the ground that the suit had not been prosecuted since close of pleadings, the present application has been brought upon the ground that the suit has not been prosecuted since removal of the same from the hearing list. The principle of res judicata thus cannot apply.
5. The record of the court shows that on 8th December 2006 the suit was fixed for hearing for 7th and 8th March 2007. As it happened, the suit was not listed on any of those two days, most likely because it was not confirmed for hearing at the monthly call-over. This must mean that it was removed from the hearing lists of both 7th and 8th March 2007.
6. The present application was filed on 7th April 2008. There was thus delay of over one year. In the circumstances of this case, that delay was inordinate. The Plaintiff has not bothered to explain the delay. I am satisfied that it will no longer be possible to have a fair trial of the action on account of the delay, and the Defendant will thereby be prejudiced.
7. In any event, it does appear that the Plaintiff has lost interest in the suit. His learned counsel informed the court at the hearing of the application that it was lack of his client’s instructions that had led to delay in prosecuting the suit.
8. In the circumstances, I will allow the notice of motion dated 26th March 2008. The Plaintiff’s suit is hereby dismissed for want of prosecution. The Defendant shall have costs of the suit (including costs of this application). It is so ordered.
9. The delay in preparation of this ruling is deeply regretted. It was caused by my poor state of health the last few years. But thank God I have now regained my full health.
DATED AT NAIROBI THIS 10TH DAY OF SEPTEMBER 2012
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 14TH DAY OF SEPTEMBER 2012