[2017] KEHC 657 (KLR)
The court found that although there had been delay in prosecuting the suit, the 1st Plaintiff had provided a reasonable explanation for the delay, namely that he was a suspect in a murder case and had been on bond and bail since January 2017. In the interest of justice, the court exercised its discretion not to...
Source-derived case information.
- Citation
- [2017] KEHC 657 (KLR)
- Parties
- Plaintiff: Kelvin Mumba Kajiwe; Plaintiff: Salim Kajiwe Washe; Defendant: Said Washe Guro; Defendant: Transparaes (Kenya) Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 232 of 2013
- Procedural Posture
- Civil Suit / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kelvin Mumba Kajiwe
Plaintiff
Salim Kajiwe Washe
Plaintiff
Said Washe Guro
Defendant
Transparaes (Kenya) Limited
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.
- 2 Whether the 1st Plaintiff should be given more time to prosecute the case.
Ratio Decidendi
The court found that although there had been delay in prosecuting the suit, the 1st Plaintiff had provided a reasonable explanation for the delay, namely that he was a suspect in a murder case and had been on bond and bail since January 2017. In the interest of justice, the court exercised its discretion not to dismiss the suit for want of prosecution, instead granting the 1st Plaintiff a further forty-five days to fix the matter for pretrial, failing which the suit would stand dismissed. The application by the 2nd Defendant was therefore dismissed, and costs were awarded to the 1st Plaintiff.
Court Disposition
application dismissed
Orders
- The 2nd Defendant's application to dismiss the suit for want of prosecution is dismissed.
- The 1st Plaintiff is directed to fix the matter for pretrial within forty-five (45) days, failing which the suit shall stand dismissed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 232 OF 2013
KELVIN MUMBA KAJIWE
SALIM KAJIWE WASHE..............................................PLAINTIFFS
VERSUS
SAID WASHE GURO
TRANSPARAES (KENYA) LIMITED......................DEFENDANTS
RULING
1. This is the Notice of Motion dated 11th July, 2017. It is brought under Section 1A, 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya, Order 17 Rule 2 (3), Order 51 Rule 1 and 3 of the Civil Procedure Rules 2010 and all enabling provisions of the Law.
2. It seeks orders;
1. That this Honourable Court be pleased to dismiss this suit for want of prosecution.
2. That costs of this application and/or the entire suit be borne by the Plaintiff/Respondent in any event.
3. The grounds are on the face of the application and are listed as paragraph a-k.
4. It is supported by affidavit of Abdulgani Abdulgaffur Pasta, a Director of the 2nd Defendant sworn on the 11th July, 2017.
5. The application is opposed. There is a replying affidavit sworn by Kelvin Mumba Kajiwe, the 1st Plaintiff sworn on the 2nd October, 2017.
6. I have considered the application, the supporting affidavit and the annexures. I have considered the replying affidavit and the submissions of both counsels.
7. I have considered paragraphs 12 and 13 of the replying affidavit of Kelvin Mumba Kajiwe, the 1st Plaintiff/Respondent.
8. I have seen annexure “KMJ -7”. It confirms that he is a suspect in a murder case before the High Court. The bond and bail is dated 9th January, 2017.
9. I find that it is in the interest of justice that I give the 1st Plaintiff a chance to prosecute his case.
That upshot of the matter is that the 2nd Defendant’s application fails.
The 1st Plaintiff is hereby directed to fix the matter to pretrial within the next forty five (45) days failure to which the suit shall stand dismissed.
The costs of the application be borne by the 1st Plaintiff.
It is so ordered.
Dated, Signed and Delivered at Mombasa on the23rd day ofNovember, 2017.
L. KOMINGOI
JUDGE
23/11/2017