[2019] KEHC 9964 (KLR)
The Court found that while the Plaintiff had been indolent in prosecuting the suit, the delay was not inordinate, particularly given the context of ongoing negotiations between the parties and the absence of demonstrated prejudice to the Defendants. The Court emphasized the policy of allowing matters to be...
Source-derived case information.
- Citation
- [2019] KEHC 9964 (KLR)
- Parties
- Applicant: Mary Muthoni Njogu; Defendant: Ndima Tea Factory Company Limited; Defendant: Kenya Tea Development Agency Management Services Limited; Defendant: Kenya Tea Development Agency Holdings Limited; Defendant: Kenya Tea Development Agency Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 189 of 2015
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- Application to dismiss suit for want of prosecution dismissed; Plaintiff to pay costs and take steps to prosecute within 45 days or suit stands dismissed.
- Judges
- F Tuiyott
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Costs Orders, Case Management
- 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 Muthoni Njogu
Applicant
Ndima Tea Factory Company Limited
Defendant
Kenya Tea Development Agency Management Services Limited
Defendant
Kenya Tea Development Agency Holdings Limited
Defendant
Kenya Tea Development Agency Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the Plaintiff's suit should be dismissed for want of prosecution due to delay.
- 2 Whether the delay in prosecuting the suit was inordinate and inexcusable.
- 3 Whether the Plaintiff should be given an opportunity to prosecute the suit on terms.
Ratio Decidendi
The Court found that while the Plaintiff had been indolent in prosecuting the suit, the delay was not inordinate, particularly given the context of ongoing negotiations between the parties and the absence of demonstrated prejudice to the Defendants. The Court emphasized the policy of allowing matters to be determined on their merits and noted that the Defendants did not claim that the delay would handicap their defence. Consequently, the application to dismiss the suit for want of prosecution was dismissed, but the Plaintiff was ordered to pay costs and to take steps to prosecute the case within 45 days, failing which the suit would stand dismissed automatically.
Court Disposition
Application to dismiss suit for want of prosecution dismissed; Plaintiff to pay costs and take steps to prosecute within 45 days or suit stands dismissed.
Orders
- The application of 25th July 2016 is dismissed.
- The Plaintiff shall bear the costs in any event, payable within 14 days of agreement or assessment.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO 189 OF 2015
(FAST TRACK)
MARY MUTHONI NJOGU....................................................APPLICANT
VERSUS
NDIMA TEA FACTORY COMPANY LIMITED........1ST DEFENDANT
KENYA TEA DEVELOPMENT AGENCY
MANAGEMENT SERVICES LIMITED......................2ND DEFENDANT
KENYA TEA DEVELOPMENT AGENCY
HOLDINGS LIMITED...................................................3RD DEFENDANT
KENYA TEA DEVELOPMENT AGENCY LTD.......4TH DEFENDANT
RULING
1. The Court record of 24th July 2018 and 9th October 2018 shows that some negotiations have been going on even after the current application of 15th July 2016 had been filed. Indeed, on 9th October 2018, Mr. Mwangi holding brief for Wahora for the Defendants accepted a request for 30 day adjournment to receive progress on the negotiations. While these issues that are post the date of the application do not explain the delay in the prosecution of the matter, they may corroborate the Respondent’s account as to why the Replying affidavit has not been filed.
2. Turning to the application itself, it is dated 25th July 2016 and although filed on 10th April 2017, it is based on the facts obtaining as at the date when Mr. Christopher Mwangi Kariuki swore the affidavit on 25th July 2016.
3. The fulcrum of the application is paragraph 7 of the affidavit and it reads,
“7. That since the dismissal of the Plaintiff’s application dated 17. 4.2010 over a year ago, the Plaintiff has not taken any further action towards the prosecution of this suit and her conduct only demonstrates that she is disinterested and undesirous of prosecuting this matter”.
4. The application was dismissed on 5th June 2015 and that would be just one (1) year before the date of the current application. The inaction had persisted for about 1 month after the one year period envisaged by the Rules. That cannot be said to be inordinate. If I consider that and the events that happened after the filing of the application which reveal some sort of negotiations then I am unable to make orders that shut out the Plaintiff.
5. The Plaintiff though indolent has now assured Court through Counsel of her readiness to prosecute the suit. It is the policy of the Court, as much as is possible and in so far as it does not unduly prejudice the Defendant, to allow a matter to be heard and determined on merit. This Court will grant an opportunity to the Plaintiff but on terms.
6. I make this order keenly aware that the Defendant does not say that the delay will handicap it in the defence of the matter, say by actual non-availability of the witnesses or loss of documents.
7. These are my orders.
(1) Whilst the application of 25th July 2016 is dismissed, the Plaintiff shall bear the costs in any event and the same are payable within 14 days of agreement or assessment.
(2) The Plaintiff shall within 45 days hereof take steps necessary to prosecute the case, failing which the suit will stand dismissed without need for any further orders.
Dated, Signed and Delivered in Court at Nairobi this 13th day of February, 2019.
F. TUIYOTT
JUDGE
Present;
Kamande for Plaintiff
Ngige for 1st, 2nd and 3rd Defendants
Nixon- Court Assistant