[1999] KEHC 149 (KLR)
The court found that although there had been a delay in prosecuting the suit, justice required that the suit be preserved rather than dismissed. The court exercised its discretion in favour of the plaintiff, noting that steps must be taken forthwith to dispose of the matter. The application for dismissal was...
Source-derived case information.
- Citation
- [1999] KEHC 149 (KLR)
- Parties
- Plaintiff: Mary Akinyi Otieno; Defendant: Kwega Bus Service & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 644 of 1993
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed; suit preserved; plaintiff to pay defendants' costs of the application.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mary Akinyi Otieno
Plaintiff
Kwega Bus Service & Another
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 delay in taking steps to prosecute the case.
- 2 Whether justice requires preservation of the suit despite the delay.
Ratio Decidendi
The court found that although there had been a delay in prosecuting the suit, justice required that the suit be preserved rather than dismissed. The court exercised its discretion in favour of the plaintiff, noting that steps must be taken forthwith to dispose of the matter. The application for dismissal was therefore dismissed, but the plaintiff was ordered to pay the defendants' costs occasioned by the application.
Court Disposition
Application for dismissal for want of prosecution dismissed; suit preserved; plaintiff to pay defendants' costs of the application.
Orders
- The application for dismissal is dismissed.
- The plaintiff shall pay the defendants' costs occasioned by this application.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE 644 OF 1993
MARY AKINYI OTIENO....................................................PLAINTIFF VERSUS KWEGA BUS SERVICE & ANOTHER...........................DEFENDANT
R U L I N G
The defendants have applied to have the plaintiffs’ suit dismissed for want of prosecution. The basis of the application is that the plaintiff has failed to prosecute the suit since the hearing of the summons for directions on 19th January 1994.
The application is opposed. It is stated that after the summons for directions negotiations commenced to arrive at an out of court settlement. It is true that no stops have been taken to prosecute this suit for quite some time. the court record shows that the suit has been listed for hearing n three previous occasions twice in 1995 and once in 1996. However the record does not show what transpired on those dates.
Justice demands that a suit should be preserved rather than dismiss it. That however should not be an excuse for inordinate delays in prosecuting a suit.
I have weighed the facts in the matter including the nature of the claim. I shall, as I hereby do, exercise my discretion in favour of the plaintiff by preserving the suit but steps must be taken forthwith to dispose of this matter.
Accordingly, the application is dismissed but the plaintiff shall pay the defendants’ costs occasioned by this application. Order accordingly.
Dated and delivered at Nairobi this 3rd day of February, 1999.
A. MBOGHOLI MSAGHA
JUDGE