[2006] KEHC 2243 (KLR)
The court found that while there was a delay in setting the suit down for hearing, the delay was not inordinate and was excusable given the explanation provided by the plaintiff regarding the allocation of hearing dates on a quarterly basis at the Mombasa registry. The court held that the defendant's application for...
Source-derived case information.
- Citation
- [2006] KEHC 2243 (KLR)
- Parties
- Plaintiff: Kofexco Limited; Defendant: Cetco Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 89 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Defendant's application for dismissal for want of prosecution dismissed; costs of the motion awarded to the defendant.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court Discretion, Allocation of Hearing Dates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kofexco Limited
Plaintiff
Cetco Limited
Defendant
Procedural Posture
Civil Case / 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 plaintiff has provided sufficient justification for the delay in setting the suit down for hearing.
Ratio Decidendi
The court found that while there was a delay in setting the suit down for hearing, the delay was not inordinate and was excusable given the explanation provided by the plaintiff regarding the allocation of hearing dates on a quarterly basis at the Mombasa registry. The court held that the defendant's application for dismissal did not meet the threshold required under Order XVI rule 5 of the Civil Procedure Rules, as sufficient reasons for the delay had been advanced by the plaintiff. Consequently, the court exercised its discretion to dismiss the defendant's motion for dismissal for want of prosecution, but awarded the costs of the motion to the defendant.
Court Disposition
Defendant's application for dismissal for want of prosecution dismissed; costs of the motion awarded to the defendant.
Orders
- The motion to dismiss the suit for want of prosecution is dismissed.
- The defendant is awarded costs of the motion in any event.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Case 89 of 2004
KOFEXCO LIMITED …………………..............................................…………….PLAINTIFF
VERSUS
CETCO LIMITED …………………...............................................…………..…DEFENDANT
R U L I N G
The defendant herein, Cetco Limited, has beseeched this court to exercise its discretion under XVI rule 5 of the Civil Procedure Rules to dismiss this suit for want of prosecution. The affidavit of Philip Nyachoti he swore on 7th March 2006 is filed in support of the motion. The plaintiff Kefexco Ltd. has resisted the motion by filing the replying affidavit of Vincent Omollo sworn on 25th April 2006.
The main ground argued by the defendant is that the plaintiff has failed to list the matter for hearing for six months since the matter was last in court for no apparent reason at all. It is the argument of Mr. Nyachoti advocate for the defendant that the continued pendency of the suit has caused unnecessary anxiety on the defendant.
On the part of the plaintiff, Mr. Omollo advocate urged this court not to dismiss the suit because it is difficult to get a hearing at the Mombasa registry because law firms are allocated quarters over hearing dates.
A cursory look at the provisions of order XVI rule 5 of the Civil Procedure rules will show that the defendant is at liberty to apply for the dismissal of a suit if within 3 months after the close pleadings or of the removal of the suit from the hearing list or the adjournment of the suit generally, the plaintiff does not set down the suit for hearing.
In this matter, it is not denied that this suit was last in court on 25. 8.2005. The record shows that the matter was again mentioned in court before Justice Maraga on 16. 11. 2005. It is not clear how the matter was placed before that court. On that date Justice Maraga adjourned the matter generally. Whichever way one looked at the matter, what is clear is that more than thee months have lapsed since the suit was last in court. That is when the provisions of order XVI rule 5 of the Civil Procedure rules come into play. In deciding the matter in favour of an applicant, the court must be satisfied that the prolonged delay has not been justified by the plaintiff. In other words, sufficient reasons must be given. I have considered the grounds argued in favour of the motion. I have also considered the reasons advanced the plaintiff to justify the delay. It is a fact that cases are allocated hearing dates on quarterly basis to law firms in Mombasa. This fact may not have been within the knowledge of the defendant and its counsel. I find that there was a delay but the same is not so inordinate hence it is excusable in view of the reasons given.
In the end I dismiss the motion but direct that the defendant be paid costs of the motion in any event.
Dated and delivered at Mombasa this 31st day of May 2006.
J.K. SERGON
J U D G E
In open court in the absence of the parties.
SERGON, J N