[2012] KEHC 2520 (KLR)
The court found that the delay in prosecuting the suit was not a result of the plaintiff's wilful inaction but was attributable to a registry practice that limited the number of cases each law firm could fix for hearing within a given period. This practice, though not formally documented, was widely known among...
Source-derived case information.
- Citation
- [2012] KEHC 2520 (KLR)
- Parties
- Plaintiff: J.B. Maina & Company Limited; Defendant: Farid M. Al-Maary; Defendant: Wycliffe Makasembo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal refused
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Practice Directions, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J.B. Maina & Company Limited
Plaintiff
Farid M. Al-Maary
Defendant
Wycliffe Makasembo
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiff's failure to set the matter down for hearing since May 2009.
- 2 Whether the delay in prosecuting the suit was attributable to the plaintiff or to registry-imposed limitations on fixing hearing dates.
- 3 Whether the 1st defendant suffered prejudice as a result of the delay.
Ratio Decidendi
The court found that the delay in prosecuting the suit was not a result of the plaintiff's wilful inaction but was attributable to a registry practice that limited the number of cases each law firm could fix for hearing within a given period. This practice, though not formally documented, was widely known among litigants and advocates. The court noted that this administrative limitation has since been reversed by Practice Note No. 1 of 2012, which now allows parties to obtain hearing dates upon compliance with Order 11 of the Civil Procedure Rules. In the absence of prejudice to the 1st defendant and given the administrative context, the court held that it would be unjust to dismiss the...
Court Disposition
application for dismissal refused
Orders
- The application for dismissal for want of prosecution is refused.
- Parties to exchange witness statements, bundles of paginated documents, and sets of issues within thirty (30) days.
Full Case Text
Judgment text and source record
19 paragraphs
J.B. MAINA & COMPANY LIMTED.....................................................................................................PLAINTIFF
VERSUS
1. FARID M. AL-MAARY
2. WYCLIFFE MAKASEMBO......................................................................................................DEFENDANTS
Coram:
Mwera J.
Onjoro for Plaintiff
Umara for 1st Defendant
N/A for 2nd Defendant
Court Clerk Furaha
RULING
The 1st defendant sought orders to have this suit dismissed for want of prosecution invoking the powers donated by Order 17 rule 2 of Civil Procedure Rules and sections 1A, 1B, 3A Civil Procedure Act.
The reason given for that prayer was that since 13th May, 2009 when a preliminary objection raised against the chamber summons dated 4th February, 2009 was upheld, the plaintiff company had taken no step to set down the suit for trial. Thus the plaintiff had no interest to do so and so it should be dismissed. A short supporting affidavit by Mr. Munyithya, advocate for the applicant, added that correspondence exchanged regarding fixing this suit for trial, elicited no positive movement on the part of the plaintiff – hence this application.
In the replying affidavit of Mr. Sega, advocate for the plaintiff, it was claimed that there was a practice in the registry where firms of advocates were only allowed each to fix a given number of cases over a given period. So on his part, their firm was inclined to fix for hearing cases older than the present one. So with that state of things, it would be unjust to dismiss this case. It was not a wilful act on the part of the plaintiff that the case was not fixed for hearing. The 1st defendant had not been prejudiced and so the prayer may as well be dismissed.
Directed to submit only the plaintiff did so by the assigned date.
In this court’s consideration of the whole matter it appears just and fair that the order sought should not issue. It is not lost on litigants in this court that their lawyers’ firms were subject to a practice direction, even if a written one was not readily available, that each was given a quota of cases to fix for hearing over any given period, perhaps monthly. That has now been reversed by the Practice Note No. 1 of 2012 dated 2nd February, 2012 in that with the Divisions and increased number of judges that practice would cease and whoever complied with Order 11 Civil Procedure Rules would go for hearing dates in the registry. That being the case, the prayer herein is refused. The parties have thirty (30) days to exchange witness statements, bundles of paginated documents plus sets of issues, ready to obtain directions as to the dates of trial. Costs in the cause.
Delivered on 29th August, 2012
J. W. MWERA
JUDGE