[2018] KEHC 544 (KLR)
The court found that the delay in prosecuting the suit was occasioned by the moratorium imposed on Blue Shield Insurance Company, which was the insurer of the subject motor vehicle. The court accepted the explanation provided by the plaintiff's counsel that the legal position regarding the moratorium has since...
Source-derived case information.
- Citation
- [2018] KEHC 544 (KLR)
- Parties
- Plaintiff: Joan Kuloba; Defendant: Asman Achando Watako; Defendant: Eldoret Express Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 116 of 2009
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff granted 90 days to prosecute.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Moratorium on Insurer, Delay in Prosecution, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joan Kuloba
Plaintiff
Asman Achando Watako
Defendant
Eldoret Express Limited
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay.
- 2 Whether the moratorium on Blue Shield Insurance Company justified the delay in prosecuting the suit.
- 3 Whether the plaintiff is now ready to prosecute the matter to conclusion.
Ratio Decidendi
The court found that the delay in prosecuting the suit was occasioned by the moratorium imposed on Blue Shield Insurance Company, which was the insurer of the subject motor vehicle. The court accepted the explanation provided by the plaintiff's counsel that the legal position regarding the moratorium has since changed, enabling the plaintiff to proceed. In the interest of justice, and considering the age of the matter, the court exercised its discretion not to dismiss the suit but ordered that it be prosecuted within 90 days from the date of the ruling, failing which it would stand dismissed.
Court Disposition
Suit not dismissed; plaintiff granted 90 days to prosecute.
Orders
- The suit shall be prosecuted within 90 days from the date of this ruling.
- If the suit is not prosecuted within 90 days, it shall stand dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO.116 OF 2009
JOAN KULOBA......................................................................PLAINTIFF
VERSUS
ASMAN ACHANDO WATAKO..................................1ST DEFENDANT
ELDORET EXPRESS LIMITED...............................2ND DEFENDANT
RULING
The matter was on the 12th October, 2018 listed for Notice to Show cause, why it should not be dismissed for want of prosecution. On the said date, Counsel for the plaintiff requested for time to file an affidavit in response to the same, which was filed on the 12th day of October, 2018. The same was sworn on 12th October, 2018 by George O. Odhiambo, Advocate, who is in conduct of the matter on behalf of the plaintiff.
In the said affidavit, it is deponed that, the cause of action that led to the filing of the suit, arose on the night of 26th/27th July 2008 and the suit was filed on 11th March 2009. That the accident involved motor vehicle registration number KAQ 731B, which was insured by Blue Shield insurance Company Limited and on many occasions when the suit has been set down for hearing, the defendants have raised the issue of the existence of the moratorium, following the placement of Blue Shield Insurance Company under receivership.
It is deponed that the previous legal position with legal to the moratorium has been set aside in a judgment of the High Court at Meru following which, the plaintiff is now ready to prosecute the matter to its logical conclusion. He urged that in the interest of justice the matter should not be dismissed.
The court has considered the contents of the said affidavit. I have also perused the record of the proceedings and indeed it’s true that the reason why the same has not been prosecuted is the existence of the moratorium imposed on Blue Shield Insurance Company.
The court notes that as deponed by Mr. George O. Odhiambo, the plaintiff is now ready to prosecute the matter.
In the interest of justice and considering that this is a very old matter, I do order that it be prosecuted within 90 days from the date of this ruling failing which it shall stand dismissed.
Dated, Signed and Delivered at Nairobi this 29th day of November, 2018
........................
L. NJUGUNA
JUDGE
In the presence of:-
....................................... For the Plaintiff
......................................For the Defendant