[2003] KEHC 738 (KLR)
The court found that although there was a six-month delay in setting the suit down for hearing, the plaintiff had since fixed hearing dates and the matter was scheduled for hearing within days. The court exercised its discretion against dismissal, noting that the delay was not so inordinate as to prejudice a fair...
Source-derived case information.
- Citation
- [2003] KEHC 738 (KLR)
- Parties
- Plaintiff: Kenbox Industries Ltd; Defendant: Ramesh Shah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1107 of 1990
- Procedural Posture
- Civil Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Judicial Discretion, Delay in Prosecution, Counterclaim Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenbox Industries Ltd
Plaintiff
Ramesh Shah
Defendant
Procedural Posture
Civil Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order XVI Rule 5 of the Civil Procedure Rules.
- 2 Whether the delay in setting the suit down for hearing justifies dismissal of the suit.
- 3 Whether the existence of a counterclaim and related suit affects the appropriateness of dismissal.
Ratio Decidendi
The court found that although there was a six-month delay in setting the suit down for hearing, the plaintiff had since fixed hearing dates and the matter was scheduled for hearing within days. The court exercised its discretion against dismissal, noting that the delay was not so inordinate as to prejudice a fair trial. Furthermore, the existence of a substantial counterclaim and a related suit to be heard together militated against dismissal, as it would not finally resolve the dispute and could result in injustice. The overriding interest of justice required that all matters in controversy be heard and determined on their merits, with costs serving as adequate compensation for any...
Court Disposition
application dismissed
Orders
- The defendant's application dated 27.11.2003 for dismissal of the suit for want of prosecution is dismissed.
- Costs of the application awarded to the defendant in any event.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 1107 OF 1990
KENBOX INDUSTRIES LTD.................................PLAINTIFF
VERSUS
RAMESH SHAH................................................DEFENDANT
RULING
This is the defendants application under Order XVI Rule 5 and Section 3A Civil Procedure Act that the suit be dismissed for want of prosecution.
The application based solely on the ground that plaintiff has not since 27. 5.2002 when suit was last adjourned set suit down for hearing. The application was listed for hearing on 3. 2.2003 but it has been adjourned on several occasions. The hearing of the application was completed yesterday – that is 22. 5.2003.
The application was served on plaintiff advocates on 28. 11. 2002 on the same day plaintiffs advocates wrote to defendants advocates to attend registry on 5. 12. 2003 for fixing a hearing date of the suit and on 5. 12. 2002 plaintiff advocates fixed the suit for hearing for next Monday and Tuesday that is on 26. 5.2003 and on 27. 5.2003. Today is on a Friday. There is a weekend and then the suit is scheduled to be heard on 26. 5.2003.
The application on dismissal of the suit was filed 6 months after the date of last adjournment of the suit on 27. 5.2002. By order XVI
Rule 5© and 5(d) Civil Procedure Rules defendant was entitled to apply for dismissal of the suit if plaintiff had not set suit down for hearing within 3 months after the last adjournment. But whether or not the court will dismiss a suit for want of prosecution will defend on the discretion of the court. The discretion of the court is exercised judicially.
Plaintiff claims over Shs.27 million plus general damages from the defendant. The defendant on the other hand counterclaims over Shs45 million from the plaintiff. The history of the suit up to 15. 5.92 is set out in my ruling dated 15. 5.92. The history of the suit after that date is reflected by the record. According to the Order of Shah, J (now J.A) given on 28. 3.94, this suit and HCCC NO. 2793/93 are to be heard in sequence one after the other by the same Judge. That means that the hearing dates of the two suites was to be fixed at the same time.
This is undoubtedly an old suit filed on 2. 3.90 and which relates to an agreement dated 30. 6.89. Although there was delay of six months in fixing suit for hearing the suit has now a hearing date in three days time.
Dismissing the suit will not finally determine the dispute believe the parties as defendant will have to prosecute the counterclaim and as court will also have to deal with the other suit – HCCC No. 2793/93 it would be unjust to dismiss the suit for want of prosecution and thereafter allow defendant to prosecute the counterclaim. It is not contended by defendant that the delay in the prosecution of the suit is such that a fair trial cannot be held at this stage.
Considering all the circumstances of this case it is my view that injustice will be done in plaintiff’s suit is dismissed for want of prosecution. It is just in the circumstances that all matters in controversy between the parties should be heard and determined on merit. Costs will be sufficient compensation to the defendant.
Consequently I dismiss the defendants application dated 27. 11. 2003 is dismissed with costs to the defendant in any event
. E.M GITHINJI
JUDGE
23. 5.2003
Mr. Odera present
Mr. Nagpal present