[2010] KEHC 3675 (KLR)
The court found that the plaintiff could not have fixed the case for hearing because the court diary for 2009 was already closed, and thus there was no inordinate delay or want of prosecution attributable to the plaintiff. The court also accepted the explanation and apology from the plaintiff's counsel regarding the...
Source-derived case information.
- Citation
- [2010] KEHC 3675 (KLR)
- Parties
- Plaintiff: Lucy Wairimu Wainaina; Defendant: Francis Kuira Wainaina
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 14 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution and Striking Out Amended Plaint
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Striking Out Pleadings, Service of Pleadings, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wairimu Wainaina
Plaintiff
Francis Kuira Wainaina
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution and Striking Out Amended Plaint
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the amended plaint should be struck out for abuse of process due to non-service.
Ratio Decidendi
The court found that the plaintiff could not have fixed the case for hearing because the court diary for 2009 was already closed, and thus there was no inordinate delay or want of prosecution attributable to the plaintiff. The court also accepted the explanation and apology from the plaintiff's counsel regarding the failure to serve the amended plaint, noting that the error was inadvertent and not a deliberate abuse of process. Consequently, the application for dismissal for want of prosecution and for striking out the amended plaint was dismissed. The court directed that the amended plaint be properly served within 15 days and made no order as to costs.
Court Disposition
application dismissed
Orders
- The application for dismissal of the suit for want of prosecution is dismissed.
- The application for striking out the amended plaint is dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT 14 OF 2009
LUCY WAIRIMU WAINAINA……………….…..PLAINTIFF
VERSUS
FRANCIS KUIRA WAINAINA…………...…….DEFENDANT
RULING
In his Notice of Motion dated 12th October 2009 and brought under Order 16 Rule 5(d) and Order 50 Rule 1 of the Civil Procedure Rules as well as Section 3A of the Civil Procedure Act and all other enabling provisions of the law, the defendant seeks the dismissal of this suit for want of prosecution or alternatively the striking out of the amended plaint as an abuse of the process of court. In his affidavit in support of the application the defendant averred that this suit was filed on 16th January 2009 and he filed a defence and counter claim on 3rd March 2009. On 9th March 2009 the plaintiff filed an amended plaint that he has to date not served it upon him. As the pleadings closed on or about 18th March 2009 and the plaintiff has not taken any action to have the case heard, he prays that the same should be struck out for want of prosecution. He also prayed that failure to serve him the amended plaint is an abuse of the process of court calling for its striking out.
Mr. Mutonyi for the plaintiff opposed the application. Relying on the replying affidavit of the plaintiff, he submitted that the reason for the failure to fix the case for hearing is because soon after the pleadings were closed the court diary for 2009 was full. Regarding service of the amended plaint he submitted that his office sent it to the defendant by registered post but used a wrong address. He apologized for the mistake which he did not discover until the time of the hearing of this application when counsel for the defendant brought it to his attention.
I know it as a fact that this court’s diary for the year 2009 was closed quite early. There is therefore no way the plaintiff could have obtained a date for the hearing of her case even if she had attempted to fix it for hearing. On that ground I decline to grant the prayer for the dismissal of the suit for want of prosecution.
As regards the prayer for the striking out of the amended plaint, I accept Mr. Mutonyi’s apology that his office inadvertently posted it to a wrong box number. I therefore direct that Mr. Mutonyi should serve the amended plaint upon counsel for the plaintiff within 15 days.
For these reasons I dismiss this application with no order as to costs.
DATED and delivered this 11th day of February, 2010.
D. K. MARAGA
JUDGE.