[2013] KEHC 1155 (KLR)
The court found that while there had been delay in prosecuting the suit, the delay was excusable given the circumstances, including the plaintiff's counsel's efforts to fix hearing dates and the intervening factors that prevented the hearing from proceeding. The court emphasized the need to balance the principle...
Source-derived case information.
- Citation
- [2013] KEHC 1155 (KLR)
- Parties
- Plaintiff: M/S Meenye & Karima T/A Meenye & Kirima Advocate; Defendant: Municipal Council of Mombasa; Defendant: The Standard Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 54 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal for want of prosecution dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Adjournment of Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M/S Meenye & Karima T/A Meenye & Kirima Advocate
Plaintiff
Municipal Council of Mombasa
Defendant
The Standard Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit against the 3rd Defendant should be dismissed for want of prosecution due to inordinate and inexcusable delay.
- 2 Whether the delay in prosecuting the suit was excusable under the circumstances.
Ratio Decidendi
The court found that while there had been delay in prosecuting the suit, the delay was excusable given the circumstances, including the plaintiff's counsel's efforts to fix hearing dates and the intervening factors that prevented the hearing from proceeding. The court emphasized the need to balance the principle that litigation must come to a close with the interests of justice. Consequently, the court declined to dismiss the suit for want of prosecution and instead ordered the parties to take hearing dates within seven days.
Court Disposition
application for dismissal for want of prosecution dismissed
Orders
- Parties to take hearing dates within seven (7) days from the date of the ruling.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE HIGH COURT OF KENYA
CIVIL SUIT NO. 54 OF 2008
M/S MEENYE & KARIMA T/A MEENYE & KIRIMA ADVOCATE …............PLAINTIFF
1. MUNICIPAL COUNCIL OF MOMBASA
3. THE STANDARD LIMITED …...................…DEFENDANTS
By Way of Notice of Motion application dated the 22nd day of January, 2013 and which is expressed to be brought under order 51 rule 1, order 17 rule 2 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act, the Applicant seeks orders that the suit as against the 3rd Defendant be dismissed for Want of prosecution.
That such delay to prosecute is inordinate and in excusable.
The application is supported by the affidavit of Mr. Billing Counsel for the 3rd Defendant who depones that the suit was filed on 13th March, 2008 and the 3rd Defendant filed defence on 31st March, 2008. The 1st and 2nd Defendants similarly filed their defences.
That the suit was fixed for hearing on 2nd November, 2009 but the plaintiff through its Advocate wrote a letter indicating that their client was not available owing to personal matters. That fresh hearing dates were fixed for 25th October, 2010 when another letter was written indicating that the plaintiff would not be available as he was engaged in another matter in Nairobi High Court.
Further that the counsel for the 3rd Defendant wrote a letter to the plaintiff on 4th November, 2010 inviting them with a view to fixing a date for hearing but since then a period of over two years nothing has been done.
Further that the deponent was subsequently arraigned in Court on 10th December, 2010 and charged in Corruption Case No. 22 of 2011. That the issues in the corruption case were substantially connected with the issues in the present case.
It is noted that the suit was first fixed for hearing on 2nd November, 2009 by the plaintiffs counsel. All parties were notified the reasons why it could not proceed on the hearing date.
I do find that there has been delay in ensuring that this suit is heard and determined expeditiously. Counsel for the plaintiff did fix hearing dates but the hearing was frustrated by other intervening factors.
Though there has been delay I find the same was excusable bearing in mind that litigation must come to a close. I do order that parties do take hearing dates within seven (7) days from to date.
Ruling delivered dated and signed this 13th day of November, 2013.
M. MUYA
13TH NOVEMBER, 2013
Leaned Counsel for Plaintiff
Learned Counsel for Defendant Miss Odhiambo holding brief Guran