[1999] KEHC 88 (KLR)
The court found that although there had been a significant 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 the record showed the suit had been listed for hearing on several occasions, and that...
Source-derived case information.
- Citation
- [1999] KEHC 88 (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 dismissed; suit preserved; costs to defendants
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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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 delay by the plaintiff.
- 2 Whether the court should exercise its discretion to preserve the suit despite the delay.
Ratio Decidendi
The court found that although there had been a significant 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 the record showed the suit had been listed for hearing on several occasions, and that negotiations for settlement had taken place. However, the court emphasized that such delays should not be tolerated and ordered that steps 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 dismissed; suit preserved; costs to defendants
Orders
- The application for dismissal for want of prosecution is dismissed.
- The plaintiff shall pay the defendants' costs occasioned by this application.
Full Case Text
Judgment text and source record
16 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