[2013] KEHC 2088 (KLR)

[2013] KEHC 2088 (KLR)

The court found that although the delay of two years was inordinate, it was credibly explained by the go-slow of advocates and the shortage of judges in Bungoma. The applicant was not served with the notice of dismissal, and there was no proof of such service in the court file. The respondent's claim of prejudice...

Source-derived case information.

Citation
[2013] KEHC 2088 (KLR)
Parties
Applicant: John Kundu Khisa; Defendant: Florence N. Wanjala
Court
High Court
Court Station
High Court at Bungoma
Jurisdiction
Kenya
Case Number
Civil Suit 18 of 2005
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal Order and Reinstate Suit
Outcome
Application allowed. Dismissal order set aside. Suit reinstated. Costs awarded to respondent.
Legal Topics
Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Notice, Delay and Excuse
Source Language
en
Civil Procedure Dismissal for Want of Prosecution Reinstatement of Suit Service of Notice Delay and Excuse

Source-derived case record

Summary, issues, holding and outcome

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Parties

John Kundu Khisa

Applicant

Florence N. Wanjala

Defendant

Procedural Posture

Miscellaneous Application / Application to Set Aside Dismissal Order and Reinstate Suit

Legal Issues

  1. 1 Whether the order dismissing the suit for want of prosecution should be set aside.
  2. 2 Whether the applicant was properly served with the notice of dismissal.
  3. 3 Whether the delay in prosecuting the suit was inordinate and inexcusable.

Ratio Decidendi

The court found that although the delay of two years was inordinate, it was credibly explained by the go-slow of advocates and the shortage of judges in Bungoma. The applicant was not served with the notice of dismissal, and there was no proof of such service in the court file. The respondent's claim of prejudice due to unavailability of witnesses was not substantiated, and any prejudice could be compensated by costs. Therefore, the dismissal order was set aside and the suit reinstated, with thrown away costs awarded to the respondent.

Court Disposition

Application allowed. Dismissal order set aside. Suit reinstated. Costs awarded to respondent.

Orders

  • The order dismissing the suit is set aside.
  • The suit is reinstated for hearing on merit.