[2006] KEHC 3263 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for approximately 17 years after the close of pleadings, which constituted inordinate and inexcusable delay. The court held that such delay prejudiced the defendant, particularly on the issue of damages, and posed a substantial...
Source-derived case information.
- Citation
- [2006] KEHC 3263 (KLR)
- Parties
- Plaintiff: Muchiri Njararuhi Kaigai; Defendant: Kithavan Estate Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3598 of 1989
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- JL Osiemo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Employer Liability, Workplace Injury
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muchiri Njararuhi Kaigai
Plaintiff
Kithavan Estate Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for want of prosecution due to inordinate and inexcusable delay.
- 2 Whether the delay has prejudiced the defendant's right to a fair trial.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for approximately 17 years after the close of pleadings, which constituted inordinate and inexcusable delay. The court held that such delay prejudiced the defendant, particularly on the issue of damages, and posed a substantial risk to the fairness of the trial. Applying Order XVI Rule 5 of the Civil Procedure Rules, the court concluded that the defendant was entitled to have the suit dismissed for want of prosecution. Accordingly, the plaintiff's suit was dismissed with costs to the defendant.
Court Disposition
suit dismissed for want of prosecution
Orders
- The plaintiff's suit is dismissed for want of prosecution.
- The defendant is awarded costs for the application and the entire suit.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Suit 3598 of 1989
MUCHIRI NJARARUHI KAIGAI…………….............................……PLAINTIFF/RESPONDENT
VERSUS
KITHAVAN ESTATE LIMITED………….…........................……….DEFENDANT/APPLICANT
RULING
The plaintiff was employed by the defendant to do various duties assigned to him from time to time. On or about the 18th July 1987 while the plaintiff was engaged in the cause of employment placing a chemical power around coffee plants to reduce soil acidity the power particles rose in the air and get into his eye causing infection around the eye. He filed this suit against the defendant his employer seeking damages.
The defence was filed by the defendant on 26th September 1989 and the pleadings were closed since then no steps have been taken by the plaintiff to set the suit down for hearing.
On 28th November 2005 the defendant brought this Notice of Motion under Order XVI Rule 5 of the Civil procedures seeking orders to have the plaintiffs suit dismissed for want of prosecution. The accident occurred in 1987 but the plaintiff took about 2 years to file his suit in 1989. The pleadings were closed in 1989 and it is now about 17 years and no steps have been taken.
The defendants submits that this is inordinate delay and that the plaintiff has been guilty of inexcusable delay which has seriously prejudiced the defendant on the issue of damages so that there is a substantial risk of a fair trial.
Order XVI Rule 5 of the Civil Procedure Rules provides that if within 3 months after the close of the pleadings the plaintiff does not set down the suit for hearing, the defendant may either set the suit down for hearing or apply for its dismissal. It is now 17 years since the pleadings were closed and the defendant has applied for the dismissal of the plaintiff’s suit. I am satisfied that the delay is inexcusable and the defendants deserves the orders sought.
The plaintiff’s suit is dismissed with costs to the defendant for this application as well as the entire suit.
Dated and delivered at Nairobi 2nd day of March, 2006.
J.L.A. OSIEMO
JUDGE