[2019] KEHC 6131 (KLR)
The court found that while the plaintiff's explanation for the delay—being out of the country and the court diary being full—was not fully substantiated, there was evidence that the plaintiff had previously attempted to prosecute the case. The absence of the plaintiff's advocate at the mediation session was...
Source-derived case information.
- Citation
- [2019] KEHC 6131 (KLR)
- Parties
- Plaintiff: Lucy Wambui Maina; Defendant: The Attorney General; Defendant: The Commissioner of Police; Defendant: Divisional Criminal Investigation Officer (CID Headquarters); Defendant: P.C. Festus Kajogi alias Kavivi; Defendant: James Nyamai Kitivi; Defendant: Officer in Charge, Muthaiga Police Station
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 55 of 2013
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Plaintiff granted 120 days to prosecute suit; suit to stand dismissed if not prosecuted within that period.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, False Imprisonment, Malicious Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wambui Maina
Plaintiff
The Attorney General
Defendant
The Commissioner of Police
Defendant
Divisional Criminal Investigation Officer (CID Headquarters)
Defendant
P.C. Festus Kajogi alias Kavivi
Defendant
James Nyamai Kitivi
Defendant
Officer in Charge, Muthaiga Police Station
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inactivity since November 2017.
- 2 Whether the plaintiff's reasons for delay in prosecuting the suit are sufficient to avoid dismissal.
- 3 Whether non-service of mediation notice on the plaintiff's advocate justifies the plaintiff's absence and inaction.
Ratio Decidendi
The court found that while the plaintiff's explanation for the delay—being out of the country and the court diary being full—was not fully substantiated, there was evidence that the plaintiff had previously attempted to prosecute the case. The absence of the plaintiff's advocate at the mediation session was reasonably explained by the lack of service of the mediation notice upon them. The court held that it would not be just to dismiss the suit solely due to the advocate's inadvertence, especially given the nature of the claim and the procedural irregularity regarding service. Exercising judicial discretion, the court granted the plaintiff 120 days to prosecute the suit, failing which it...
Court Disposition
Plaintiff granted 120 days to prosecute suit; suit to stand dismissed if not prosecuted within that period.
Orders
- The plaintiff is granted 120 days from the date of this ruling to prosecute her suit.
- In default of prosecution within 120 days, the suit shall stand dismissed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 55 OF 2013
LUCY WAMBUI MAINA..........................................................................PLAINTIFF
-VERSUS-
THE ATTORNEY GENERAL........................................................1ST DEFENDANT
THE COMMISSIONER OF POLICE...........................................2ND DEFENDANT
THE DIVISIONAL CRIMINAL INVESTIGATION
OFFICER (CID HEADQUARTERS)............................................3RD DEFENDANT
P.C. FESTUS KAJOGI ALIAS KAVIVI.......................................4TH DEFENDANT
JAMES NYAMAI KITIVI..............................................................5TH DEFENDANT
OFFICER IN CHARGE, MUTHAIGA POLICE STATION.....6TH DEFENDANT
R U L I N G
1. This ruling concerns the notice to show cause issued by the court on 5th February, 2019 against the parties, requiring them to show cause as to why the suit should not be dismissed for want of prosecution, since the same was last before court on 16th November, 2017.
2. The Plaintiff has filed a replying affidavit in response, asserting that the matter was certified ready for hearing on 16th March, 2015. That the matter was scheduled for hearing on 28th February, 2016 but it was taken out of the causelist on the said date and parties were directed to take fresh dates at the registry.
3. The Plaintiff also stated that fresh dates could not be obtained since the officials at the court registry indicated that the 2016 court diary was full and they would have to await the opening of the 2017 diary. It is also the plaintiff’s averment that she was in and out of the country for the better part of 2017 on official duties, hence her advocate could not fix a hearing date.
4. I have taken into consideration the facts deponed to in the replying affidavit. I have also perused the court record and ascertained that the plaintiff’s advocate had sent out an invitation letter for the purpose of fixing a hearing date on 24th November, 2016, though there is no record of the issued date. There is also nothing to indicate that the 2016 court diary was full as at that time.
5. Needless to say, the record reveals that the suit, which constitutes a claim for false imprisonment and malicious prosecution, was screened for mediation and the parties required to appear in court on 16th November, 2017 but that on the said date, the deputy registrar noted that none of the parties were present.
6. While there is evidence of service of the notices for mediation upon the defendants, there is nothing to show that the plaintiff’s advocate was served with the said notice, which could very well explain their absence in court on the abovementioned date.
7. That being the case, it is my considered view that the reason given by the plaintiff that she was away has not been supported by any documentation, neither does this adequately explain the inaction in the matter. However, and as earlier stated, the plaintiff had made previous attempts to prosecute her case and also, it was fundamentally upon her advocate to ensure the matter was set down for hearing at the earliest opportunity. It would therefore not do justice to punish the plaintiff for her counsel’s inadvertence.
8. Furthermore, given the nature of the claim and the apparent non-service of the notice for mediation upon the plaintiff’s advocate, I find it reasonable to exercise my discretion in favour of the plaintiff.
9. Consequently, the plaintiff is granted 120 days within which to prosecute her suit from today, in default of which the same shall stand dismissed.
Dated, signed and delivered at NAIROBI this 20TH day of JUNE, 2019
...........................
L. NJUGUNA
JUDGE
In the presence of:
…………………………..........................................…. for the Plaintiff
……………………………. for the 1st, 2nd, 3rd, 4th and 6th Defendants
……………………….................................……. for the 5th Defendant