[2016] KEHC 580 (KLR)
The court held that although there had been delay in prosecuting the suit, the plaintiff had advanced valid and legitimate reasons for the delay, and there was no substantial prejudice occasioned to the defendants nor any risk that a fair trial would not be possible. The court emphasized that the discretion to...
Source-derived case information.
- Citation
- [2016] KEHC 580 (KLR)
- Parties
- Plaintiff: Jeremiah Ng'ayu Kioni; Defendant: The Standard Media Group Ltd & 11 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 100 of 2013
- Procedural Posture
- Civil Suit / Ruling on Applications for Dismissal for Want of Prosecution
- Outcome
- Applications for dismissal for want of prosecution dismissed. Plaintiff granted 30 days to set matter for pre-trial directions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Pre Trial Directions, Judicial Discretion, Delay in Prosecution, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Ng'ayu Kioni
Plaintiff
The Standard Media Group Ltd & 11 Others
Defendant
Procedural Posture
Civil Suit / Ruling on Applications for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules.
- 2 Whether the plaintiff has provided sufficient explanation for the delay in prosecuting the suit.
- 3 Whether the defendants have suffered prejudice due to the delay.
Ratio Decidendi
The court held that although there had been delay in prosecuting the suit, the plaintiff had advanced valid and legitimate reasons for the delay, and there was no substantial prejudice occasioned to the defendants nor any risk that a fair trial would not be possible. The court emphasized that the discretion to dismiss a suit for want of prosecution should be exercised judiciously and in the interest of substantive justice. As there was still an opportunity for the suit to be heard without injustice or undue difficulty, the applications for dismissal were dismissed, and the plaintiff was given a final opportunity to set the matter down for pre-trial directions within 30 days, failing which...
Court Disposition
Applications for dismissal for want of prosecution dismissed. Plaintiff granted 30 days to set matter for pre-trial directions.
Orders
- Notice of Motion dated 12th May 2015, 22nd May 2015, 5th March 2015, and 23rd January 2015 are dismissed.
- Plaintiff to set the matter for pre-trial directions within 30 days of the ruling, failing which the suit shall stand dismissed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 100 OF 2013
JEREMIAH NG’AYU KIONI……..…………………...............……………PLAINTIFF
VERSUS
THE STANDARD MEDIA GROUP LTD & 11 OTHERS…………….DEFENDANTS
RULING
The plaintiff herein filed suit against the defendants in March, 2013 claiming damages and an injunction based on defamation allegedly by the defendants. All the defendants denied the plaintiff’s claim. The defendants have now filed four applications for dismissal of the suit for want of prosecution.
These are Notice of Motion dated 12th May 2015, Notice of Motion dated 22nd May 2015, and Notice of Motion dated 5th March 2015 and Notice of Motion dated 23rd January 2015. They are all essentially brought under the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act and Order 17 rule 2(3) of the Civil Procedure Rules.
Three of these applications (notices dated 23rd May 2015, 12th May 2015 and 22nd May 2015) were heard and ruling delivered by Sergon J. on 2nd July 2015. He dismissed the suit citing the lack of explanation by the Plaintiff on why the suit had not been prosecuted for over 24 months. This is because the Plaintiff had ‘not responded’ to the said applications. In a Notice of Motion dated 21st July 2015, the Plaintiff sought reinstatement of the suit based on the fact that there was a replying affidavit on record which the Court inadvertently failed to acknowledge. After reconsidering its contents, the court was of the view that the Plaintiff had advanced valid and legitimate reasons to explain the delay in prosecuting the case. The suit was therefore reinstated.
The applications are now being heard with the benefit of a replying affidavit on record sworn on 23rd March 2016 and Grounds of objection filed on the same date. They are to the effect that –
i. Pre-trial directions have not been complied with by the Defendants.
ii. They have failed to demonstrate the prejudice that is likely to be occasioned to them.
iii. The Plaintiff wrote a letter to all the Defendants enclosing a statement of agreed issues which did not elicit any response.
iv. On 11th March 2015, he filed list of issues but the 11th Defendant failed to accept service pending hearing and determination of their application.
v. It is in the interest of justice that this Honourable court dismisses the applications.
vi. The court should allow the suit to continue as he has demonstrated willingness to set the matter down for hearing.
Learned counsel filed written submissions to the applications the contents of which I have read.
Order 17 Rule 2 (1) aforesaid provides as follows,
“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”
The rule is clear that it is the court on its own motion that initiates the steps to be taken. This rule is essentially intended to ensure that where parties are not keen or interested in pursuing matters that have been lodged before the court, they should be reminded that the court is not a reserve for matters not intended for prosecution. The last time any action was taken on this matter on substantive issues was when the 3rd, 4th and 5th Defendants filed a list of issues on 13th November, 2013.
The Plaintiff’s counsel seems to blame the Defendants for failure to take out pre-trial processes but between 2013 and the date when the applications were made for dismissal, no effort had been made to have the matter set down for pre-trial directions. This should not be cited as an excuse because a party should always take the necessary steps to progress his suit to the logical conclusion.
However, considering the circumstances of the case, there seems to be no substantial prejudice occasioned to the Defendants nor is there any risk that a fair trial may still not be possible. The hearing of the suit is still possible without causing injustice or tremendous difficulty in the trial.
It is paramount that courts endevour to sustain a suit brought by litigants rather than dismissing the same. This is in order to promote substantive justice and therefore achieve just resolution of disputes through a fair hearing. The order sought is discretionary and taking into account the obtaining circumstances in this suit, I am inclined to give the plaintiff a chance to prosecute his suit. That being the case, the notice of motion dated 12th May 2015, notice of motion dated 22nd May 2015, Notice of Motion dated 5th March 2015 and Notice of Motion dated 23rd January 2015 are dismissed.
The Plaintiff is hereby ordered to have the matter set for pre-trial directions within 30 days of this ruling failure to which the suit shall stand dismissed. Costs shall be in the cause.
Orders accordingly.
Dated and delivered at Nairobi this 12th Day of October, 2016.
A.MBOGHOLI MSAGHA
JUDGE