[2009] KEHC 1152 (KLR)
The court found that while the plaintiffs' efforts to prosecute the suit were minimal and could be attributed to a lack of diligence by their counsel, the delay in this case was not inexcusable. The court noted that the plaintiffs' explanation regarding the full court diary was plausible, and there was insufficient...
Source-derived case information.
- Citation
- [2009] KEHC 1152 (KLR)
- Parties
- Plaintiff: Kenya Airports Authority; Plaintiff: Mr. George Muhoro; Defendant: The Standard Limited; Defendant: Managing Director, The Standard; Defendant: Douglas Okwach
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 421 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs to the defendants
- Judges
- JM Khamoni
- 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
Kenya Airports Authority
Plaintiff
Mr. George Muhoro
Plaintiff
The Standard Limited
Defendant
Managing Director, The Standard
Defendant
Douglas Okwach
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 due to delay by the plaintiffs in setting the matter for hearing.
- 2 Whether the delay in prosecuting the suit was inexcusable and prejudicial to the defendants.
Ratio Decidendi
The court found that while the plaintiffs' efforts to prosecute the suit were minimal and could be attributed to a lack of diligence by their counsel, the delay in this case was not inexcusable. The court noted that the plaintiffs' explanation regarding the full court diary was plausible, and there was insufficient evidence to conclude that the delay would occasion grave injustice to any party. Consequently, the court exercised its discretion to dismiss the defendants' application for dismissal for want of prosecution, but ordered the plaintiffs to pay the costs of the application to the defendants as a cautionary measure.
Court Disposition
application dismissed with costs to the defendants
Orders
- The Notice of Motion dated 29th October 2008 is dismissed.
- The plaintiffs/respondents shall pay the costs of the Notice of Motion to the defendants/applicants.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL SUIT 421 OF 2005
KENYA AIRPORTS AUTHORITY..........1ST PLAINTIFF\RESPONDENT
MR. GEORGE MUHORO......................... 2ND PLAINTIFF\RESPONDENT
v
THE STANDARD LIMITED..................... 1ST DEFENDANT\APPLICANT
MANAGING DIRECTOR,
THE STANDARD.......................................2ND DEFENDANT\APPLICANT
DOUGLAS OKWACH................................. 3RD DEFEDANT\APPLICANT
RULING
The Defendants, through a Noticed Motion dated 29th October 2008 and brought under Order XVI Rules 5 (c) of the Civil Procedure Rules have applied for the dismissed of this suit for want of prosecution on the ground that for nearly a year since the matter was supposed to come up for hearing but the same was not listed for lack of confirmation at the call over, the suit had not been fixed for hearing.
The Plaintiffs oppose the application on the ground that they could not get a hearing date because the court diary was full for whole year.
I have read and considered filed affidavits as well as written submissions for and against the Notice of Motion
While noting that it is incumbent upon the Plaintiffs to do all that is possible to ensure that the suit is heard within a reasonable time and that the Respondents attempts in this case are few and this could be due to lack of keenness by the Plaintiff’s counsel who could take a hearing date, for example, and subsequently fail to have it confirmed at the call over, I think that in the circumstances of this case, where there is a lot left to imagination and guessing, the delay would not be inexcusable and since disallowing this application does not appear to me likely to occasion grave injustice to the parties or any of them, hoping that the Plaintiffs have now learned a lesson, the said Notice of Motion be and is hereby dismissed.
However, the Plaintiffs/Respondents to pay costs of the Notice of Motion to the Defendants/Applicants.
Dated this 24th day of July 2009.
J.M. KHAMONI
JUDGE