[2017] KEHC 7989 (KLR)
The court found that although both parties failed to comply with the directive to file comprehensive witness statements and documents, the directive issued by Justice Mabeya did not contain a default clause specifying the consequences of non-compliance. The plaintiffs had filed a witness statement, albeit not...
Source-derived case information.
- Citation
- [2017] KEHC 7989 (KLR)
- Parties
- Plaintiff: Joseph Njiru Kaugi; Plaintiff: Catherine Murigu Njiru (Suing as personal Representatives of the estate of Martin Muriithi Njiru-Deceased); Defendant: Kenyatta National Hospital Board
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 617 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Compliance With Court Orders, Case Management, Fair Hearing Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Njiru Kaugi
Plaintiff
Catherine Murigu Njiru (Suing as personal Representatives of the estate of Martin Muriithi Njiru-Deceased)
Plaintiff
Kenyatta National Hospital Board
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiffs' failure to file comprehensive witness statements and documents as directed by the court.
- 2 Whether the absence of a default clause in the court's directive precludes dismissal of the suit for non-compliance.
Ratio Decidendi
The court found that although both parties failed to comply with the directive to file comprehensive witness statements and documents, the directive issued by Justice Mabeya did not contain a default clause specifying the consequences of non-compliance. The plaintiffs had filed a witness statement, albeit not comprehensive, and the defendant had also failed to file its required documents. In the absence of a prescribed sanction for default and considering that both parties were in breach, the court held that it would not be fair or just to dismiss the suit for want of prosecution. The application was therefore dismissed, and each party was ordered to bear its own costs.
Court Disposition
application dismissed
Orders
- The motion dated 9.2.2016 is dismissed.
- Each party to meet its own costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 617 OF 2007
JOSEPH NJIRU KAUGI
CATHERINE MURIGU NJUIRU (Suing as personal
Representatives of the estate of Martin Muriithi
Njiru-DECEASED...........................................PLAINTIFF/RESPONDENT
-V E R S U S –
KENYATTA NATIONAL HOSPITAL BOARD.......DEFENDANT/APPLICANT
RULING
1. The subject matter of this ruling is the motion dated 9th February 2016 in which Kenyatta National Hospital Board the defendant herein applied for inter alia, the suit to be dismissed for want of prosecution. The motion is supported by the affidavit of Stephen Bundotich. When served, Joseph Njiru Kaugi and Catherine Marigu Njuiru, the plaintiffs’ herein filed grounds of opposition to resist the motion. When the motion came up for interpartes hearing, learned counsels recorded a consent order to have the application disposed of by written submissions.
2. I have considered the grounds stated on the face of the motion and grounds of opposition. I have further considered the facts deponed in the supporting affidavit plus the rival written submissions. The defendant argued that when the suit was placed before Justice Mabeya on 19. 03. 2015, the honourable judge issued directions ordering the parties to file their respective comprehensive witness statements and bundle of documents within 30 days. The defendant submitted that since the plaintiff has not complied with the aforesaid directive the suit should be dismissed for want of prosecution and for failing to comply with the court order. The plaintiffs on the other hand are of the view that the suit is not ripe for dismissal and that the plaintiff has engaged themselves in a game of delaying tactics. The defendant argued that it is against the provisions of Article 50 as read with Article 159 of the constitution of Kenya, 2010 to deny a litigant a right for a fair hearing. The main ground of contention is whether or not the suit should be dismissed on the basis that no witness statement and documents were not filed by the plaintiff as directed by the court. The honourable Mr. Justice Mabeya was categorical that parties should file comprehensive witness statements and documents within 30 days. When the defendant realised that the plaintiff had not filed the envisaged documents within the given time frame, it sought for the suit to be dismissed. I have carefully examined the directives given by Justice Mabeya and it is apparent that the honourable judge did not make a default clause. It is also clear that as at the time of issuing the directive, the plaintiffs had already filed a witness statement which was not comprehensive. The defendant on its part did not deem it fit to file its witness statements and documents as directed by court. Both parties are guilty for not complying with the directives of the court. In the circumstances of this case and in view of the fact that the court did not prescribe any sanction for a defaulting party, a fair order is to decline to grant the order.
3. In the end, I find no merit in the motion dated 9. 2.2016. The same is dismissed. Each party to meet its costs.
Dated, Signed and Delivered in open court this 27th day of January, 2017.
J. K. SERGON
JUDGE
In the presence of:
.............................................................. for the Plaintiff
............................................................... for the Defendant