[2018] KEHC 1396 (KLR)
The court found that while the plaintiff's predicament in being unable to access essential documents was genuine and largely beyond its control, the case could not remain in abeyance indefinitely. The former advocate, according to evidence in a related suit, denied possession of the documents, raising doubt as to...
Source-derived case information.
- Citation
- [2018] KEHC 1396 (KLR)
- Parties
- Plaintiff: Lenana Mount Hotel Limited; Defendant: Kenya Airways Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 636 of 2006
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Plaintiff granted seven days to decide whether to proceed without documents; failing which, suit to be dismissed for want of prosecution.
- Judges
- MM Kasango
- Legal Topics
- Want of Prosecution, Delay in Prosecution, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lenana Mount Hotel Limited
Plaintiff
Kenya Airways Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to prolonged inactivity.
- 2 Whether the plaintiff's inability to proceed, owing to lack of access to essential documents, justifies further delay.
Ratio Decidendi
The court found that while the plaintiff's predicament in being unable to access essential documents was genuine and largely beyond its control, the case could not remain in abeyance indefinitely. The former advocate, according to evidence in a related suit, denied possession of the documents, raising doubt as to whether the documents would ever be recovered. The court exercised its discretion to grant the plaintiff a final opportunity—seven days—to decide whether to proceed without the documents, failing which the suit would be dismissed for want of prosecution. This balanced the need for fairness to the plaintiff with the imperative to avoid indefinite delay and abuse of court process.
Court Disposition
Plaintiff granted seven days to decide whether to proceed without documents; failing which, suit to be dismissed for want of prosecution.
Orders
- The plaintiff is granted seven days to decide whether to proceed in the absence of the documents.
- If the plaintiff does not elect to proceed, the suit shall stand dismissed for want of prosecution.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
CIVIL SUIT NO. 636 OF 2006
LENANA MOUNT HOTEL LIMITED.........................PLAINTIFF
VERSUS
KENYA AIRWAYS LIMITED...................................DEFENDANT
RULING
1. The progress in the prosecution of this case has unfortunately been hampered by circumstances that beyond the control of the plaintiff.
2. The suit was filed by the plaintiff on 21st November 2006. By 30th January 2007 pleadings had closed.
3. By notice to show cause dated 9th November 2018 the plaintiff was called upon to show cause why this suit should not be dismissed for want of prosecution.
4. This is what the Court was informed, by the plaintiff, in response to that notice to show cause. The plaintiffs’ former advocate seemed to have lost interest in this matter. The plaintiff therefore instructed its present advocate to take over the conduct this case. The former advocate filed an advocate/client bill of costs. After taxation and after the former advocate was paid the taxed costs he failed to release 12 boxes of documents which the plaintiff requires to prove this case. As a consequence the plaintiff sued its former advocate in Commercial and Admiralty Division, Nairobi Misc case No.719 of 2011. Judgment was entered for the plaintiff, in that suit, for the release of the boxes of plaintiff’s documents. That the former advocate being aggrieved with that judgment filed an appeal before the Court of appeal, which appeal is yet to be heard. The plaintiff therefore stated that it has been unable to fix this case for hearing because of lack of documents necessary to prove its case.
5. This Court appreciates that the plaintiff has been put in that difficult circumstance. This court however notes that the former advocate in the aforestated suit stated in evidence that he did not have in his possession, those documents. One therefore wonders what will be the fate of this case if the plaintiff does not get its documents. This case cannot continue to be in Limbo forever. It needs to be prosecuted.
6. It is because of the above and more particularly because the plaintiff’s former advocate does not have the documents of the plaintiff that this Court give the plaintiff 7 days within which to decide whether it shall proceed in the absence of the documents. If not this case shall be dismissed for want of prosecution. At the reading of this Ruling a date will be given for the plaintiff to state whether it shall proceed without the documents or not.
DATED, SIGNED and DELIVERED at NAIROBI this29thday of November,2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant......................Sophie
............................................... for the Plaintiff
............................................... for the Defendant
MARY KASANGO
JUDGE