[2017] KEHC 6664 (KLR)
The court found that the defendant, having failed to comply with Order 11 of the Civil Procedure Rules, was itself responsible for the suit not being ready for hearing. The plaintiff provided a plausible explanation for the delay, supported by correspondence from the Deputy Registrar. Since the defendant did not...
Source-derived case information.
- Citation
- [2017] KEHC 6664 (KLR)
- Parties
- Plaintiff: John Mwangi Kingori; Defendant: Nation Media Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 279 of 2009
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Pre Trial Procedure, Order 11 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Mwangi Kingori
Plaintiff
Nation Media Group Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay by the plaintiff.
- 2 Whether the defendant's non-compliance with Order 11 of the Civil Procedure Rules justifies the delay in setting the suit for hearing.
Ratio Decidendi
The court found that the defendant, having failed to comply with Order 11 of the Civil Procedure Rules, was itself responsible for the suit not being ready for hearing. The plaintiff provided a plausible explanation for the delay, supported by correspondence from the Deputy Registrar. Since the defendant did not controvert these averments or deny its non-compliance, the court held that the motion to dismiss for want of prosecution was without merit. The inability to fix the suit for hearing was attributable to the defendant's own failure to comply with pre-trial procedures, not to any lack of interest by the plaintiff.
Court Disposition
application dismissed
Orders
- The motion dated 30th June 2015 is dismissed with costs abiding the outcome of the suit.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 279 OF 2009
JOHN MWANGI KINGORI.....PLAINTIFF/RESPONDENT
-V E R S U S –
NATION MEDIA GROUP LIMITED ............ DEFENDANT
RULING
1. Nation Media Group Ltd, the defendant herein, took out the motion 30th June 2015, whereof it sought to have the suit filed by John Mwangi Kingori, the plaintiff herein dismissed for want of prosecution. The motion is supported by the affidavit of Zehrabanu Jahnmohamed. When served with the motion, the defendant filed a replying affidavit he swore to resist the motion.
2. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application. I have too considered the rival oral submissions. It is the submission of the defendant that the plaintiff and his counsel have failed to set down this suit for hearing since the 27th day of September 2012. This court was beseeched to find that the plaintiff has lost interest in pursuing this suit. It is argued that the continued pendency of this suit is prejudicial to the defendant because its witnesses may leave employment and that others may forget important piece of evidence.
3. In response to the defendant’s arguments, the plaintiff urged this court to spare the suit. He stated that he has never lost interest of the case. He pointed out that he has filed all the relevant documents hence this case is not ready for hearing except that the defendant has not complied with the provisions of Order 11 of the Civil Procedure Rules.
4. It is the submission of the plaintiff that it has been difficult for the Deputy Registrar of this court to fix the suit for hearing because the defendant had failed to comply with the provisions of Order 11 of the Civil Procedure Rules. The plaintiff attached to the replying affidavit the correspondences made by the Deputy Registrar indicating that the suit was not ready for hearing. The defendant did not deem it fit to controvert the averments made on affidavit. The defendant has not denied that it has never complied with Order 11 of the Civil Procedure Rules. What emerges from the detailed replying affidavit is that this suit cannot be fixed for directions nor hearing unless parties comply with pre-trial procedures. It is apparent that the defendant has not done so. I find that the plaintiff has given plausible explanation as to why the suit has not been listed for hearing.
5. In the end the motion dated 30. 6.2015 is found to be without merit. It is dismissed with costs abiding the outcome of the suit.
Dated, Signed and Delivered in open court this 10th day of March, 2017.
J. K. SERGON
JUDGE
In the presence of:
........................ for the Plaintiff
........................ for the Defendant