[2018] KEHC 3237 (KLR)
The court found that the plaintiffs failed to show sufficient cause for the delay in prosecuting the suit, particularly after being informed in February 2017 that the court file was available. The 2nd Plaintiff's claim that the file was missing was unsupported by evidence, as the Deputy Registrar's letter confirmed...
Source-derived case information.
- Citation
- [2018] KEHC 3237 (KLR)
- Parties
- Plaintiff: Mwangi Charles Mahinga; Plaintiff: Edward Kings Onyancha Maina; Defendant: Kenya Commercial Bank; Defendant: Susan Outa Mudhune; Defendant: Susan Nkirote Omanga; Defendant: Peter Wanyaga Muthoka; Defendant: Ernst & Young
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 246 of 2008
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Formal Proof, Interlocutory Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwangi Charles Mahinga
Plaintiff
Edward Kings Onyancha Maina
Plaintiff
Kenya Commercial Bank
Defendant
Susan Outa Mudhune
Defendant
Susan Nkirote Omanga
Defendant
Peter Wanyaga Muthoka
Defendant
Ernst & Young
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the plaintiffs have shown sufficient cause to prevent dismissal of the suit for want of prosecution.
- 2 Whether the plaintiffs provided evidence that the court file was missing and thus justified the delay.
- 3 Whether the case was at the stage for formal proof in the absence of interlocutory judgment.
Ratio Decidendi
The court found that the plaintiffs failed to show sufficient cause for the delay in prosecuting the suit, particularly after being informed in February 2017 that the court file was available. The 2nd Plaintiff's claim that the file was missing was unsupported by evidence, as the Deputy Registrar's letter confirmed the file's availability. Furthermore, the court held that the case could not proceed to formal proof because interlocutory judgment had not been entered and the defendants had filed a defence that remained on record. Consequently, the plaintiffs did not meet the threshold to avoid dismissal for want of prosecution, and the suit was dismissed accordingly.
Court Disposition
suit dismissed for want of prosecution
Orders
- The plaintiffs' suit is dismissed for want of prosecution.
- The court file is to be closed.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION – MILINANI LAW COURTS
CIVIL CASE NO. 246 OF 2008
MWANGI CHARLES MAHINGA................................1ST PLAINTIFF
EDWARD KINGS ONYANCHA MAINA................... 2ND PLAINTIFF
-VERSUS-
KENYA COMMERCIAL BANK................................ 1ST DEFENDANT
SUSAN OUTA MUDHUNE..........................................2ND DEFENDANT
SUSAN NKIROTE OMANGA.....................................3RD DEFENDANT
PETER WANYAGA MUTHOKA................................4TH DEFENDANT
ERNST & YOUNG........................................................5TH DEFENDANT
RULING
1. The Plaint in this matter was filed in the year 2008 by two Plaintiffs. Those Plaintiffs are Mwangi Charles Mahinda, the 1st Plaintiff, and Edward Kings, the 2nd Plaintiff. Throughout the hearing of the various interlocutory applications in this matter only the 2nd Plaintiff attended the court.
2. The matter came before me on 1st October 2018, when the Plaintiffs were required to show cause why this suit should not be dismissed for want of prosecution. Only the 2nd Plaintiff attended court on that date.
3. The 2nd Plaintiff pleaded with the court not to dismiss this suit. He stated that he wished to proceed with the formal proof of this case.
4. The 2nd Plaintiff further stated that the court file had gone missing from the Court Registry and that on writing to the Deputy Registrar he had received a reply by letter dated 22nd February 2017, whereby the Deputy Registrar informed him that the file was available.
5. At the initial stages of this suit there were flurries of Applications filed by the Plaintiffs. These Applications were before court until August 2010. Thereafter the matter was mentioned before Judges and a Deputy Registrar until 27th November 2012, when there was no activity in this matter.
6. The matter was listed on 30th March 2017, when the Judges ordered the parties to apply with pre-trial directions and once there was compliance to proceed to fix the matter for case management.
7. This matter went to sleep until the Notice to Show Cause dated 7th September 2018 was issued, which is what the 2nd Plaintiff responded to before me.
8. I have considered what the 2nd Plaintiff submitted. The 2nd Plaintiff did not show that indeed the file was missing from the Court Registry. What the Deputy Registrar letter communicated was that the file was available at the registry. Not that it had been missing.
9. Secondly, the 2nd Plaintiff failed to show cause for failing to prosecute this suit, even after receiving assurance from the Deputy Registrar on 22nd February 2017, that the file was available.
10. The 2nd Plaintiff erred to have submitted that this case was for formal proof. There is no evidence on the Court record that Interlocutory Judgment was entered against the Defendants. The Defendants filed a joint defence to the Plaintiffs’ case on 26th June 2008. There is no evidence, on the Court record, that that defence had been struck out.
11. It follows from this discussion that Plaintiff has failed to show cause why from February 2017, he failed to prosecute this case and further the 1st Plaintiff failed to show why from the inception of this suit he had failed to prosecute his case.
12. For the above reasons and because no satisfactory cause has been shown, the Plaintiffs’ suit is hereby dismissed for want of prosecution. To that end I order that this file be closed.
DATED, SIGNED and DELIVERED at NAIROBI this5thday of October,2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant................Sophie
........................................ for the Plaintiffs
........................................ for the Defendants
MARY KASANGO
JUDGE