[2009] KEHC 2293 (KLR)
The court found that although there was a delay of eleven months in prosecuting the suit, this period was not inordinate in the circumstances of the case. The plaintiff provided a plausible and persuasive explanation for the delay, and there was no risk of disappearance of evidence since the claim was based on...
Source-derived case information.
- Citation
- [2009] KEHC 2293 (KLR)
- Parties
- Plaintiff: Mathew Lekidime Lempurkel; Defendant: Loisaba Ranch Limited; Defendant: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 360 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed. Plaintiff to pay costs of the application. Plaintiff directed to list the suit for hearing within three months.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Malicious Prosecution, Wrongful Arrest, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathew Lekidime Lempurkel
Plaintiff
Loisaba Ranch Limited
Defendant
The Hon. Attorney General
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 was inordinate and inexcusable.
- 3 Whether the delay has occasioned prejudice to the defendants.
Ratio Decidendi
The court found that although there was a delay of eleven months in prosecuting the suit, this period was not inordinate in the circumstances of the case. The plaintiff provided a plausible and persuasive explanation for the delay, and there was no risk of disappearance of evidence since the claim was based on subsisting court records. The court emphasized that dismissal of a suit is a draconian remedy and should only be exercised where there is clear prejudice to the defendant, which was not demonstrated here. Therefore, the application for dismissal was dismissed, but the plaintiff was ordered to pay the costs of the application and to take steps to list the suit for hearing within...
Court Disposition
Application for dismissal for want of prosecution dismissed. Plaintiff to pay costs of the application. Plaintiff directed to list the suit for hearing within three months.
Orders
- The application for dismissal for want of prosecution is dismissed.
- The plaintiff shall pay the costs of this application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 360 of 2006
MATHEW LEKIDIME LEMPURKEL …..………………… PLAINTIFF
VS.
LOISABA RANCH LIMITED …....….………..……. 1ST DEFENDANT
THE HON. ATTORNEY GENERAL ……..…...….. 2ND DEFENDANT
RULING
The plaintiff herein brought this suit against the two defendants claiming general damages for wrongful arrest and malicious prosecution.
After the pleadings were closed, the plaintiff did not list the case for hearing or take any steps to facilitate expeditious disposal of the same. That being the case, the 1st defendant, by an application dated 17th April 2007 under Order XVI rule 5 of the Civil Procedure Rules moved the court for the dismissal of this suit for want of prosecution. The main reason for seeking that order is that, the plaintiff has not taken any steps to prosecute his claim after the pleadings were closed.
The plaintiff has filed a reply to that application and the two learned counsel appearing for the parties have made their respective submissions and cited several authorities. These I have read.
Before any suit is dismissed the party seeking dismissal thereof must demonstrate that there is inordinate delay which is inexcusable and that the said delay is prejudicial.
In this particular case, the claim is for general damages and it is premised on some prosecution upon which court records will be relied upon. That is to say, the record will form the basis of the plaintiff’s claim and if the record is still subsisting then there is no risk of disappearance of evidence.
There is no doubt that any defendant brought to court will entertain some anxiety over the impending suit. But in this particular case, I believe the period of eleven (11) months though apparently long, should not be viewed to be inordinate in the circumstances of this case.
Additionally, the plaintiff has given a plausible explanation as to why this delay has occasioned the non-completion of this suit and that being the case, I believe an excuse has been advanced that persuades this court to sustain this suit. This is in conformity with the practice that, the courts should always endeavour to sustain a suit rather than to dismiss the same unless any prejudice will be occasioned to the other party.
And so, whereas I appreciate the anxiety on the part of the applicant to have this matter disposed off, I am of the view that the plaintiff should be given a chance to prosecute his suit to finality. However, he is to blame for the delay and whereas I am inclined to dismiss this application which I hereby do, I order that the plaintiff shall pay the costs of this application.
Having said so, and considering that the pleadings have been closed, I direct that the plaintiff shall institute measures to have this suit listed for hearing expeditiously and in any case not later than three months from the date hereof.
Orders accordingly.
Dated, signed and delivered at Nairobi this 21st day of July, 2009.
A. MBOGHOLI MSAGHA
JUDGE
Mr. Mose for Mr. Nyaberi for the 1st Defendant/Applicant
No appearance for the Respondents