[2005] KEHC 2924 (KLR)
The court found that the plaintiff's failure to prosecute the suit was due to the inaction of his previous advocate. Since the plaintiff has now engaged a new advocate and demonstrated willingness to proceed, the court exercised its discretion to set aside the dismissal order. The overriding consideration was to...
Source-derived case information.
- Citation
- [2005] KEHC 2924 (KLR)
- Parties
- Plaintiff: Josphat Wanjohi Karite; Defendant: Consolidated Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 264 of 1993
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application granted. Order of dismissal set aside.
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Application Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Wanjohi Karite
Plaintiff
Consolidated Bank of Kenya
Defendant
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the plaintiff should be granted another opportunity to prosecute the suit.
Ratio Decidendi
The court found that the plaintiff's failure to prosecute the suit was due to the inaction of his previous advocate. Since the plaintiff has now engaged a new advocate and demonstrated willingness to proceed, the court exercised its discretion to set aside the dismissal order. The overriding consideration was to allow the matter to be heard on its merits, provided the plaintiff takes prompt steps to prosecute the suit within a specified period.
Court Disposition
Application granted. Order of dismissal set aside.
Orders
- The order of dismissal made on 22nd June 2001 is set aside.
- The plaintiff is ordered to take appropriate action in the prosecution of the suit within 3 months from the date hereof.
Full Case Text
Judgment text and source record
5 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI H.C.C.C. NO. 264 OF 1993JOSPHAT WANJOHI KARITE………….………………PLAINTIFF/APPLICANT VERSUS CONSOLIDATED BANK OF KENYA…………..…DEFENDANT/RESPONDENT
R U L I N G By his application dated 31st March 2003 the Plaintiff/Applicant seeks to have the order made by the court on 22nd June 2001 dismissing his suit for want of prosecution set aside. The Plaintiff’s suit was dismissed by the court on its own motion under order XVI rule 6 of the Civil Procedure Rules after the Plaintiff failed to take action to prosecute his suit from 13th June 1997 when the case came up for hearing and was marked stood over generally. The Plaintiff now blames the advocate who was previously acting for him Mr.T. T. M. Aswani for failing to take appropriate action to prosecute the suit. Although the Defendant filed grounds of opposition to the application, there was no attendance by the defence counsel during the hearing of the application which therefore proceeded ex-parte.
Given that the Plaintiff has now engaged another advocate I am prepared to give him another opportunity to prosecute his suit. I do therefore grant his application and set aside the order of dismissal made on 22nd June 2001. I further order the Plaintiff to take appropriate action in the prosecution of his suit within 3 months from the date hereof.
Dated, signed and delivered this 18th day of March 2005.
H. M. OKWENGU JUDGE