[2017] KEHC 1667 (KLR)
The court found that the plaintiff had provided a satisfactory explanation for the delay in prosecuting the suit, namely the death of the defendant and the pending application for substitution through letters of administration. The court held that these circumstances constituted sufficient cause to avoid dismissal...
Source-derived case information.
- Citation
- [2017] KEHC 1667 (KLR)
- Parties
- Plaintiff: Kenya Ihenya Company Limited; Defendant: Timothy Kimani Mugai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 302 of 2011
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff given 30 days to set down pending applications for hearing, failing which suit stands dismissed.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Interlocutory Judgment, Substitution of Parties, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Ihenya Company Limited
Plaintiff
Timothy Kimani Mugai
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether the plaintiff has provided sufficient reason for the delay in prosecuting the suit.
- 3 Whether the pending applications, including substitution of the deceased defendant, justify keeping the suit alive.
Ratio Decidendi
The court found that the plaintiff had provided a satisfactory explanation for the delay in prosecuting the suit, namely the death of the defendant and the pending application for substitution through letters of administration. The court held that these circumstances constituted sufficient cause to avoid dismissal for want of prosecution. However, the court emphasized that the plaintiff must act expeditiously and set down the pending applications for hearing within 30 days, failing which the suit would stand dismissed automatically. The court balanced the need for expeditious disposal of cases with the realities of the situation, particularly the procedural complications arising from the...
Court Disposition
Suit not dismissed; plaintiff given 30 days to set down pending applications for hearing, failing which suit stands dismissed.
Orders
- The suit is spared from dismissal for want of prosecution.
- The plaintiff is ordered to set down the two pending applications for hearing within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 302 OF 2011
KENYA IHENYA COMPANY LIMITED............................PLAINTIFF
VERSUS
TIMOTHY KIMANI MUGAI..........................................DEFENDANT
RULING
The matter herein was on 3rd November, 2017 listed for Notice to show cause why it should not be dismissed for want of prosecution. The notice dated the 9th day of October 2017 was issued by the court under Order 17 Rule 2 of the Civil Procedure Rules.
In response to the notice, the plaintiff filed an affidavit sworn by Othiniel Kobogo Waiguru on the 23rd March 2017. The deponent who is a director of the plaintiff depones that after the suit was filed on 29/7/2014, the summons were served upon the defendant who entered appearance but failed to file a defence following which an interlocutory Judgment was entered.
That on 11/4/2012, a decree was issued but on the 24/10/2014, the defendant filed an application seeking orders for setting aside of the same, which application is still pending.
That in the meantime, the defendant died, and on the 5/2/2016, the plaintiff’s advocate filed miscellaneous cause no 13 of 2016 in the High court family Division seeking an order that Jane Wanjiku Kimani, the deceased defendant’s wife, be compelled to take out letters of administration to represent the estate of the deceased. The said application is still pending.
Counsel for the plaintiff has asked the court to either dismiss the defendant’s application dated 24/10/2014 to allow the plaintiff proceed with execution or to allow the High Court Family Division to issue a grant of letters of administration to the deceased’s wife for purposes of substitution.
The court has considered the submissions by the Counsel for the plaintiff, and the reasons given why the suit has not been prosecuted for a period of more than two years since it was last in court. The fact that there is a pending application by the defendant, to set aside interlocutory Judgment is neither here nor there as the plaintiff can either set down the said application for hearing or apply for it to be dismissed, which it has not done.
However, the court has noted that the defendant’s death has affected the pace of prosecution of the case. It has been deponed that he died on the 7/7/2015 and on the 5/2/2016, the plaintiff filed an application dated 2/2/2016 for orders to compel the wife of the defendant to take out letters of administration or in the alternative, the court do issue a grant of letters administration for purposes of substituting the deceased. A copy of that application is annexed to the affidavit in response to the Notice to show cause.
I find that a good reason has been given why the suit has not been prosecuted and therefore, I will spare the suit but order that the two pending applications be set down for hearing within 30 days from the date of this ruling failing which the suit shall stand dismissed.
It is so ordered.
Dated, Signed and Delivered at Nairobi this 15th day of November, 2017
………………
L. NJUGUNA
JUDGE
In the presence of:-
………………………….for the plaintiff
………………………..for the defendant