[2007] KEHC 1754 (KLR)
The court found that the delay in prosecuting the suit was not inordinate and was sufficiently explained by the Plaintiff. The delay was caused by the Defendant's failure to provide better particulars as requested by the Plaintiff, which in turn prevented completion of discovery and readiness for hearing. The court...
Source-derived case information.
- Citation
- [2007] KEHC 1754 (KLR)
- Parties
- Plaintiff: Madan Gopal Sharma; Defendant: Rajendra Chaganlal Pattni
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 14 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed with costs to the Respondent.
- Judges
- CM Kariuki
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Discovery Process, Pleadings and Particulars
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Madan Gopal Sharma
Plaintiff
Rajendra Chaganlal Pattni
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 delay by the Plaintiff.
- 2 Whether the delay in prosecuting the suit is attributable to the Plaintiff or the Defendant.
- 3 Whether the pending application for better particulars justifies the delay in prosecution.
Ratio Decidendi
The court found that the delay in prosecuting the suit was not inordinate and was sufficiently explained by the Plaintiff. The delay was caused by the Defendant's failure to provide better particulars as requested by the Plaintiff, which in turn prevented completion of discovery and readiness for hearing. The court held that it would be unjust to penalize the Plaintiff for a delay attributable to the Defendant's conduct. Accordingly, the application for dismissal for want of prosecution was dismissed with costs to the Plaintiff.
Court Disposition
Application for dismissal for want of prosecution dismissed with costs to the Respondent.
Orders
- The application dated 25/9/06 is dismissed.
- Costs awarded to the Respondent against the Applicant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 14 OF 2004
MADAN GOPAL SHARMA………………..…..………….… PLAINTIFF
VERSUS
RAJENDRA CHAGANLAL PATTNI…….……………….DEFENDANT
R U L I N G
The Notice of Motion herein dated 25/9/06, seeks dismissal of the suit herein for want of prosecution.
Supported by Philip Nyachoti’s Affidavit, the application is on the grounds that the matter was last in court on 20/6/06 for the Plaintiff’s application dated 21/9/04 and the Defendant’s application dated 13/10/04 when it was stood over generally and the court ordered that fresh dates be fixed at the Registry.
On 20/6/06 Preliminary Objections were to be heard, but the matter did not proceed. Since then, avers the applicant, no action has been taken by the Plaintiff to prosecute the suit. When the Plaintiff sought to fix a hearing date on 31/10/06 for 3/11/06, this dismissal application had been filed – on 25/9/06, and no date was picked.
In opposition, the Respondent has given a chronology of events to explain the delay. Thus, the suit was filed on 12/1/04; on 21/9/04 the Respondent sought further particulars, on the defence, vide an application which was fixed for hearing in July, 2005, but did not proceed because applicant’s counsel was reported sick. Another date was taken for 31/10/05, but again applicant’s counsel was absent – at Milimani Commercial Courts. The application – seeking better particulars- did not take off even on 20/6/06, and without such particulars, discovery could not be completed, and hearing of the suit cannot take off.
To date, the particulars have not been provided to the Plaintiff, and instead of supplying the particulars the Defendants resorted to dismissal of the suit, while the application for better particulars is still before this court – Mugo, J.
My perusal of the pleadings and consideration of the submissions by both learned counsels – Mr. Ligunya and Mr. Khan, leads me to the following findings and conclusions.
While counsel for applicant/defendant admits that the application for better particulars on defence is still pending, and that discovery is thus not complete, he contends that such an explanation is not sufficient. I find that submission strange because, without the requested particulars, discovery cannot be completed, and without discovery, the suit is not ripe for hearing. That, in my view, is sufficient explanation by the Respondent/Plaintiff, of the delay in prosecuting the suit.
As this court has repeatedly held, delay is a factual matter, and no two cases are identical. Here, the delay in prosecuting the suit is all because of the Defendant/Applicant’s failure to supply the better particulars on the defence sought by the Plaintiff.
Accordingly, I find and hold that there is no inordinate delay, and if there is, the blame cannot be placed at the door steps of the Plaintiff. If anything the delay is caused by the Defendant/Applicant’s conduct.
On the basis of the above, I dismiss the application herein, with costs to the Respondent and against the applicant.
DATED and delivered in Nairobi, this 21st Day of February, 2007.
O.K. MUTUNGI
JUDGE