[2005] KEHC 3126 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for over three years, and that the explanations offered were unconvincing. The responsibility to move the case forward rests with the plaintiff, and the inactivity suggested either forgetfulness or loss of interest. However, the...
Source-derived case information.
- Citation
- [2005] KEHC 3126 (KLR)
- Parties
- Plaintiff: M.A. Bayusuf & Sons Ltd.; Defendant: Schenker & Co. (E.A.) Ltd.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 286 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Conditional adjournment with costs; suit to be dismissed if plaintiff fails to comply.
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M.A. Bayusuf & Sons Ltd.
Plaintiff
Schenker & Co. (E.A.) Ltd.
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 due to the plaintiff's inaction for over three years.
- 2 Whether the defendant's failure to set the suit down for hearing or outstanding procedural matters preclude dismissal.
- 3 Whether the interests of justice require the suit to be decided on its merits despite the delay.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for over three years, and that the explanations offered were unconvincing. The responsibility to move the case forward rests with the plaintiff, and the inactivity suggested either forgetfulness or loss of interest. However, the court exercised its discretion in favour of substantive justice, granting the plaintiff a final opportunity to fix the suit for hearing within 30 days, subject to payment of the defendant's costs for the application. Failure to comply would result in automatic dismissal of the suit.
Court Disposition
Conditional adjournment with costs; suit to be dismissed if plaintiff fails to comply.
Orders
- Plaintiff to fix the hearing of the suit within 30 days.
- Plaintiff to pay costs of the application assessed at KES 7,500 within 15 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 286 of 1998
M.A. BAYUSUF & SONS LTD. ................................................................. PLAINTIFF
- Versus -
SCHENKER & CO. (E.A.) LTD. .......................................................... DEFENDANT
Coram: Before Hon. Justice Mwera
Mwagona for Applicant/Defendant
Nyongesa for Respondent/Plaintiff
Court clerk - Kazungu
R U L I N G
The defendant filed a notice of motion dated 6/5/2005 under Order 16 rule 5 Civil Procedure Rules and Section 3A Civil Procedure Act for orders that this suit be dismissed for want of prosecution. The main ground put forth was that when the case came up in the callover on 27/6/2002, it was taken out and stood over generally. That for slightly over 3 years - the plaintiff has done absolutely nothing to fix the suit for hearing the inattention and inactivity that has not been explained. That by defaulting on this primary duty which always rests on the shoulders of a plaintiff, whereby the defendant has had the suit hanging over its head, it is just and proper that it be dismissed. That was Mr. Mwagona’s main plank of argument.
Mr. Wanyonyi’s rejoinder that the defendant should as well have set down the suit for trial because it has a counter-claim on record or that there was some outstanding application or procedure to be cleared by the defendant did not seem to hold much water, so this court thought. Not even that the defendant had not filed and served its list of documents. Mr. Wanyonyi also seemed to blame the registry procedure in listing matters, in that there are limited slots to utilize and so the plaintiff’s lawyer’s inability to take hearing dates should not be passed on to the detriment of the party (plaintiff). But he did not in any way show any attempts at fixing the hearing dates eg by inviting the defendant for that, or demonstrate why the plaintiff’s lawyers’ firm chose to process other cases it handles passing over this case.
Having considered all above, this court concluded that it was this application which prompted the plaintiff on 20/6/2005 to jump from its slumber and invite the defendant to come and take trial dates. All facts put together, the plaintiff appears either to have forgotten about this case or lost interest in it. Such cases deserve to be dismissed so that not only do the defendants feel relieved but the court registries can also cleanse their records and shelves.
However, the plaintiff is given 30 days to fix the hearing of this suit and this is only because the greater interest is served when disputes are ultimately decided on their merits. But before doing so, the plaintiff is directed to pay costs of this application assessed at Sh. 7,500/= in the next 15 days. In default this suit will stand dismissed.
Orders accordingly.
Delivered on 21st October 2005.
J.W. MWERA
JUDGE