[2018] KEHC 9302 (KLR)
The court found that while the delay in prosecuting the suit was inordinate, the Plaintiff provided a medical chit indicating ongoing medical treatment since 2015. Although the evidence did not conclusively show the Plaintiff was unable to attend to other matters, the court exercised its discretion to give the...
Source-derived case information.
- Citation
- [2018] KEHC 9302 (KLR)
- Parties
- Plaintiff: Kennedy Omoro Mosoti; Defendant: Mohan Galot
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 551 of 2010
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Excusable Delay, Prejudice to Defendant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Omoro Mosoti
Plaintiff
Mohan Galot
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the Plaintiff's suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the delay in prosecuting the suit is excusable based on the Plaintiff's illness.
- 3 Whether the Defendant has suffered prejudice as a result of the delay.
Ratio Decidendi
The court found that while the delay in prosecuting the suit was inordinate, the Plaintiff provided a medical chit indicating ongoing medical treatment since 2015. Although the evidence did not conclusively show the Plaintiff was unable to attend to other matters, the court exercised its discretion to give the Plaintiff another opportunity to prosecute the case. The application for dismissal was therefore dismissed, but the court ordered that the suit be listed for directions within 30 days, failing which it would stand dismissed. The court balanced the interests of both parties and considered the Plaintiff's explanation for the delay, ultimately deciding that justice would be served by...
Court Disposition
application dismissed
Orders
- The application for dismissal for want of prosecution is dismissed.
- Costs awarded to the Defendant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 551OF 2010
KENNEDY OMORO MOSOTI................PLAINTIFF/RESPONDENT
VERSUS
MOHAN GALOT........................................DEFENDANT/APPLICANT
RULING
1. The application dated 30th August, 2017 seeks orders that the Plaintiff’s suit be dismissed for want of prosecution.
2. It is stated in the grounds and the affidavit in support of the application that the Plaintiff has not taken any steps to prosecute this suit for over six years. It is pointed out that on 6th February, 2015, a part heard application for dismissal of suit was withdrawn by the Defendant after the Plaintiff in his response stated that the court file had gone missing. That despite the court file having been traced, the Plaintiff did not take any action in the matter
3. The application is opposed. It is stated in the replying affidavit that the Plaintiff fell ill in the year 2015 and has had prolonged and several visits in and out of hospital. It is further stated that the Plaintiff has gradually healed and is interested in prosecuting his case. Order 17 rule 2 Civil Procedure Rules provides as follows:
“(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) ..........
(3)Any party to the suit may apply for its dismissal as provided in sub-rule 1”
4. The principles governing dismissal of a suit for want of prosecution are that delay must be inordinate, the inordinate delay is inexcusable and the Defendant is likely to be prejudiced. Chesoni, J. (as he then was) applied these principles in the case of Ivita v. Kyumbu [1984] KLR, 441. He stated as follows in the said case:-
“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that he will be prejudiced by the delay or even that the Plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the Plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the Plaintiff’s excuse for the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”
5. The delay in the case at hand is inordinate. No steps have been taken by the Plaintiff to prosecute the same. The medical chit exhibited by the Plaintiff reflects that he has been attending a medical facility since the year 2015. It is not clear from the said document whether the Plaintiff was unable to attend to other matters. Be as it may, this court is inclined to give the Plaintiff a chance to prosecute his case.
6. The upshot is that the application is dismissed. With costs to the Defendant. The suit to be listed for directions within 30 days from the date hereof in default the suit to stand dismissed
Dated, signed and delivered at Nairobi this 28th day of June, 2018
B.THURANIRA JADEN
JUDGE