[2011] KEHC 1524 (KLR)
The court found that while the Plaintiff had been inactive and failed to appear or be represented at the hearing of the application, the explanation provided was ongoing settlement negotiations. The court emphasized that dismissal for want of prosecution is a drastic remedy and should only be exercised after careful...
Source-derived case information.
- Citation
- [2011] KEHC 1524 (KLR)
- Parties
- Plaintiff: Josephat Akoyo Mabiala; Defendant: Royal Media Services; Defendant: Saulo Wanambisi Busolo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 328 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed; costs awarded to Defendant/Applicant; Plaintiff granted final opportunity to comply with pre-trial requirements within 45 days.
- Judges
- KH Rawal
- Legal Topics
- Dismissal for Want of Prosecution, Judicial Discretion, Pre Trial Procedure, Defamation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat Akoyo Mabiala
Plaintiff
Royal Media Services
Defendant
Saulo Wanambisi Busolo
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 under Order 17 Rule 2 of the Civil Procedure Rules, 2010.
- 2 Whether the Plaintiff has provided sufficient cause for the delay in prosecuting the suit.
- 3 Whether the court should exercise its discretion to dismiss the suit or grant the Plaintiff a final opportunity to comply with pre-trial requirements.
Ratio Decidendi
The court found that while the Plaintiff had been inactive and failed to appear or be represented at the hearing of the application, the explanation provided was ongoing settlement negotiations. The court emphasized that dismissal for want of prosecution is a drastic remedy and should only be exercised after careful consideration of the interests of both parties. Given the circumstances, the court decided to grant the Plaintiff a final opportunity to comply with pre-trial requirements within 45 days, rather than dismissing the suit outright. However, the costs of the application were awarded to the Defendant/Applicant as a consequence of the Plaintiff's inaction.
Court Disposition
Application for dismissal for want of prosecution dismissed; costs awarded to Defendant/Applicant; Plaintiff granted final opportunity to comply with pre-trial requirements within 45 days.
Orders
- The application for dismissal for want of prosecution is dismissed.
- The Plaintiff is directed to finalize pre-trial requirements as per Order 3 of Civil Procedure Rules within 45 days.
Full Case Text
Judgment text and source record
23 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 328 OF 2007
JOSEPHAT AKOYO MABIALA.......................................................................................PLAINTIFF
VERSUS
ROYAL MEDIA SERVICES....................................................................................1ST DEFENDANT
SAULO WANAMBISI BUSOLO...........................................................................2ND DEFENDANT
RULING
The Notice of Motion dated 2nd November, 2010 but filed on 16th December 2010 is premised under Sec. 1A and 1B of Civil Procedure Act and Order 17 Rule 2 (3), Order 51 Rule 1 of Civil Procedure Rules, 2010.
It seeks the dismissal of the suit for want of prosecution.
The application was heard ex-parte because of the non representation from the Plaintiff despite the due service on the Advocate on record. However, the replying affidavit has been sworn by the Plaintiff.
It was urged that the burden to prove that all necessary steps have been taken rests on the Plaintiff. The replying affidavit simply states that there has been negotiation for an out of court settlement and that the sum is still to be agreed.
I have gone through the pleadings of the matter which is a defamation case.
Under Order 17 Rule 2 of Civil Procedure Rule, 2010, the Court has discretion to dismiss the suit, which discretion is wide and unfettered. However, no court shall exercise this discretion capriciously. It has to be a carefully considered judicious discretion.
It is also a trite law that the court has to look at interest of both parties before it proceeds to shut the doors of justice on a party.
I have carefully considered the application and do frown upon the non-action by the Plaintiff and on the absence of representation even on the date of hearing of this application. I also note that despite the leave to file a further affidavit to the Applicant after filing of replying affidavit by the Plaintiff, none is filed by the Defendant/Applicant.
In the peculiar circumstances of this case, I shall give this last opportunity to the Plaintiff to put his house in order and direct that the pre-trial requirements as per Order 3 of Civil Procedure Rules be finalized by both parties within 45 days hereof.
I dismiss the application but give the costs thereof to the Defendant/Applicant.
Dated, signed and delivered at Nairobi this 23rd day ofJune, 2011
K. H. RAWAL
JUDGE
23. 06. 2011