[2012] KEHC 3967 (KLR)
The court found that the only ground advanced for reinstatement was improper service of the notice to show cause, but no further justification was provided for the prolonged delay in seeking reinstatement. The plaintiff's indolence was evident from the continued lack of action, including the six-year delay in...
Source-derived case information.
- Citation
- [2012] KEHC 3967 (KLR)
- Parties
- Plaintiff: Meshack Tinega t/a Meelin Design Services; Defendant: Nairobi City Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1118 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs to the defendant/respondent
- Judges
- C.N Mutava
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Service of Notice, Court Discretion, Delay in Prosecution
- 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
Meshack Tinega t/a Meelin Design Services
Plaintiff
Nairobi City Council
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be reinstated after dismissal for want of prosecution due to alleged improper service of notice.
- 2 Whether the delay in prosecuting the application for reinstatement justifies refusal of the application.
Ratio Decidendi
The court found that the only ground advanced for reinstatement was improper service of the notice to show cause, but no further justification was provided for the prolonged delay in seeking reinstatement. The plaintiff's indolence was evident from the continued lack of action, including the six-year delay in prosecuting the application itself. The court held that such delay defeats equity and is contrary to the interests of justice, as there must be finality in litigation. The claim was also considered technically time-barred. Consequently, the court declined to exercise its discretion in favour of the plaintiff and dismissed the application with costs.
Court Disposition
application dismissed with costs to the defendant/respondent
Orders
- The application dated 12th September 2005 is dismissed with costs to the Defendant/Respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MILIMANI
COMMERCIAL & ADMIRALTY DIVISION
CIVIL SUIT NO.1118 OF 2001
MESHACK TINEGA
T/A MEELIN DESIGN SERVICES…..….....................................................…………PLAINTIFF
VS.
NAIROBI CITY COUNCIL………………...............................................................DEFENDANT
RULING
1. The suit in this matter was dismissed on 13th June 2003 for want of prosecution. On that date neither party attended court. The application before me is a Chamber Summons application dated 12th September 2005 seeking orders to set aside the orders dismissing the suit of 13th June 2003 aforesaid.
2. The grounds upon which the application is based are that on the date the suit was dismissed, counsel for the Plaintiff had not attended court because the notice to show cause had been served upon the firm of OsoroMogikoyo& Company Advocates instead of the Plaintiff’s firm then on record. The Plaintiff therefore claims that it is just for him to be allowed to pursue the claim which he states was fully settled save for interest.
3. The application is opposed through a replying affidavit of KarisaIha the Defendant’s Deputy Director of Legal Affairs sworn on 8th March 2012. The Defendant’s position is that it would be unjust to set aside the orders of 13th June 2003 as no reasonable grounds have been put forth by the Applicant. The Defendant states further that this is an old suit which has been substantially settled. The Notice of Motion itself has remained unprosecuted for 6 years having been filedon 12th September 2005. There is therefore an irresistible inference that the Plaintiff was not keen to prosecute the matter.In addition, no notice of change was filed to show that the firm on record for the plaintiff had ceased acting at the time the notice was served upon it.
4. I have carefully considered the application based on the affidavit evidence tendered as well as the submissions by counsel for the parties.
5. The only ground upon which the Applicant seeks reinstatement of the suit is that the notice of dismissal was not served upon the then advocates on record for the Plaintiff. Beyond this, no reasons have been placed before me to justify why the suit should be reinstated almost nine years after it was dismissed for want of prosecution. Further, the indolence of the Applicant that led to the dismissal of the suit in the year 2003 has consistently continued to manifest itself as discernible from the fact that the application before me was itself filed on 12th September 2005. I do not think that the Plaintiff deserves the exercise of the court’s discretion as this delay itself defeats equity. Allowing the application would not be in the interests of justice as there has to be a limit to litigation. The claim itself is technically time-barred as six years have lapsed since the suit was dismissed. I would also not want to imagine that the Defendant would now be forced to make provision for such a stale claim just like I do not feel that the Applicant deserves any benefit for all the years he has been asleep over the matter.
6. For these reasons, the Application is dismissed with costs to the Defendant/Respondent.
IT IS SO ORDERED.
DATED, SIGNED AND DELIVERED IN NAIROBI THIS 14TH DAY OF JUNE 2012.
J.M. MUTAVA
JUDGE