[2007] KEHC 2152 (KLR)
The court found that the defendants had not complied with their discovery obligations despite multiple court orders, and as such, even if the case were set for hearing, it could not proceed. The applications for dismissal for want of prosecution by the defendants were deemed an abuse of the court process because the...
Source-derived case information.
- Citation
- [2007] KEHC 2152 (KLR)
- Parties
- Plaintiff: John Misoga Lwangu & Others; Defendant: Fort Properties Limited; Defendant: Mistry V. Naran Mulji & Company; Defendant: Housing Finance Co. of Kenya; Defendant: Savings & Loan Kenya Ltd.; Defendant: Municipal Council of Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 698 of 1994
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- applications for dismissal for want of prosecution dismissed; no order as to costs; leave to appeal granted
- Legal Topics
- Discovery Obligations, Dismissal for Want of Prosecution, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Misoga Lwangu & Others
Plaintiff
Fort Properties Limited
Defendant
Mistry V. Naran Mulji & Company
Defendant
Housing Finance Co. of Kenya
Defendant
Savings & Loan Kenya Ltd.
Defendant
Municipal Council of Mombasa
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 when the defendants themselves have not complied with discovery obligations.
- 2 Whether the defendants' applications for dismissal constitute an abuse of the court process.
- 3 Whether the plaintiffs' own indolence affects entitlement to costs.
Ratio Decidendi
The court found that the defendants had not complied with their discovery obligations despite multiple court orders, and as such, even if the case were set for hearing, it could not proceed. The applications for dismissal for want of prosecution by the defendants were deemed an abuse of the court process because the defendants themselves had not put their house in order. The court also noted that the plaintiffs had been indolent and therefore did not deserve costs. The applications for dismissal were dismissed with no order as to costs, and leave to appeal was granted.
Court Disposition
applications for dismissal for want of prosecution dismissed; no order as to costs; leave to appeal granted
Orders
- Defendants' applications for dismissal for want of prosecution are dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Suit 698 of 1994
JOHN MISOGA LWANGU & OTHERS ………………………. PLAINTIFFS
V E R S U S
1. FORT PROPERTIES IMITED
2. MISTRY V. NARAN MULJI & COMPANY
3. HOUSING FINANCE CO. OF KENYA
4. SAVINGS & LOAN KENYA LTD.
5. MUNICIPAL COUNCIL OF MOMBASA. ….………….. DEFENDANTS
RULING
Order 10 Rule 11A (1) obliges all parties to a suit to make discovery within one month after the pleadings are closed. The pleadings in this 1994 case were closed in January 1995.
When this case came up for hearing before me on 12th November 2003 it could not be heard as the parties had not made discovery. I directed that parties do make discovery before the next hearing date. Though some of the plaintiffs filed their list of documents on 2nd July 2005 the case could not be heard on the 7th September 2005 because the other parties had not made discovery. So that even if this suit were fixed for hearing again for that same reason it cannot heard.
In spite of threeorders, the first one made by the Deputy Registrar on 31st July 1998, the second one by myself on 12th November 2003 and the last one by the Hon. Justice Mwera on 7th September 2005 the defendants have to date not made discovery. That notwithstanding they have separately applied under Order 16 Rule 5(d) (1) to have this suit dismissed for want of prosecution. In my view all those applications are an abuse of the process of court. If I wanted I would have resorted to Order 10 Rule 20 and struck out their defences. But I do not want to do that because the plaintiffs themselves have been indolent. I do not accept Mr. Asige’s argument that I should confine myself to the period stated in the applications, which is since 12th November 2003. If I had found merit in the application I would have looked at the whole history of the case to see whether or not the plaintiff have been diligent in prosecuting his case.
Before a defendant is heard on an application for dismissal of a suit for want of prosecution he must show that he has put his house in order and that there is nothing from his end that can hinder the hearing of the case. As I have said even if this case were fixed for hearing today it could not still have been heard as the defendants have not made discovery. The defendants’ applications are hereby dismissed with no order as to costs. The plaintiffs having themselves been indolent they do not deserve the costs of the applications.
DATED and delivered this 25th day of May 2007.
D.K. MARAGA
JUDGE
25. 5.2007
Before Maraga Judge
Mwakireti for plaintiff
Pandya for 1st and 2nd defendant
Swaleh for Archer & Wilcock.
Court clerk – Mitoto
Court – Ruling delivered in open court.
D.K. MARAGA
JUDGE
Mr. Swaleh - I apply for leave to appeal.
D. MARAGA
JUDGE
Court – Leave to appeal granted.
D. K. MARAGA
JUDGE