[2007] KEHC 1156 (KLR)
The court found that although the plaintiff had failed to take steps to prosecute the suit since its filing, the delay was satisfactorily explained by the plaintiff's illness. The court accepted the explanation that the plaintiff was unable to proceed due to ill health and was in the process of appointing an...
Source-derived case information.
- Citation
- [2007] KEHC 1156 (KLR)
- Parties
- Plaintiff: Nahashon Chelule Tole; Defendant: Meshack Rop; Defendant: Mosonik Tigiren; Defendant: Livingstone Suiyon
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 12 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution disallowed; plaintiff given three months to proceed; costs awarded to defendants.
- Judges
- LK Kimaru
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Discovery Obligations, Illness of Party, Power of Attorney, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nahashon Chelule Tole
Plaintiff
Meshack Rop
Defendant
Mosonik Tigiren
Defendant
Livingstone Suiyon
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff has provided sufficient reasons to prevent dismissal of the suit for want of prosecution.
- 2 Whether the delay in prosecuting the suit was justified by the plaintiff's illness.
- 3 Whether the court should exercise discretion to allow the suit to proceed despite procedural delays.
Ratio Decidendi
The court found that although the plaintiff had failed to take steps to prosecute the suit since its filing, the delay was satisfactorily explained by the plaintiff's illness. The court accepted the explanation that the plaintiff was unable to proceed due to ill health and was in the process of appointing an attorney to act on his behalf. Recognizing the sensitivity of land matters and the preference for resolving such disputes on their merits, the court exercised its discretion to disallow the application for dismissal. However, the court imposed a strict timeline, ordering the plaintiff to conclude discovery and take steps to fix the suit for hearing within three months, failing which...
Court Disposition
Application for dismissal for want of prosecution disallowed; plaintiff given three months to proceed; costs awarded to defendants.
Orders
- The application for dismissal of the suit for want of prosecution is disallowed.
- The plaintiff is ordered to conclude discovery and take necessary steps to fix the suit for hearing within three months from the date of the ruling.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO Civil Suit 12 of 2005
NAHASHON CHELULE TOLE……………….................…….PLAINTIFF
VERSUS
MESHACK ROP……………...................…..…………...1ST DEFENDANT
MOSONIK TIGIREN……………………...................…...2ND DEFENDANT
LIVINGSTONE SUIYON……………...................………3RD DEFENDANT
RULING
This is a notice of motion made under Order XVI Rule 5(a) and (d) and Order L Rule 1 of the Civil Procedure Rules by the defendants seeking the order of this court to have the plaintiff’s suit dismissed with costs for want of prosecution. The defendants have stated that the plaintiff had not taken any steps to have the suit listed for hearing more than three months from the time pleadings were closed. The defendants contend that the plaintiff has not shown due diligence in the prosecution of the case and therefore it would serve the interest of justice for the suit to be dismissed for want of prosecution. The application is supported by the affidavit of the 3rd defendant, Livingstone Suiyon.
The application is opposed. The advocate for the plaintiff, George Moturi has sworn a replying affidavit in opposition to the application. He has deponed that the plaintiff fell ill soon after filing the suit and was therefore unable to fix this suit for hearing. He deponed that he had advised the plaintiff to execute a power of attorney to enable one of his sons to prosecute this suit on his behalf on account of his illness. He stated that the plaintiff had followed his advice and was in the process of registering the appointment of one of his sons as one of his attorneys in the suit. He deponed that the delay in the prosecution of the suit was not deliberate since it had been occasioned by the illness of the plaintiff.
At the hearing of the application, Mr. Kipyegon for the defendants and Mr. Maengwe for the plaintiff relied on the pleadings filed in court in support of their opposing positions in the application. The issue for determination by this court is whether the plaintiff has given sufficient reasons that would persuade this court not to dismiss the plaintiff’s suit for want of prosecution. It is not in dispute that the plaintiff made no attempt to list the case for hearing since the suit was filed on the 2nd February 2005. The plaintiff has not complied with the rules that require him to have concluded discovery soon after the close of the pleadings. The defendants are justified in their assertion that the plaintiff appears to be disinterested in the pursuit of the prosecution of this suit. Mr. Moturi, counsel for the plaintiff, has however explained that the plaintiff is ailing and has been unable to prosecute his case. He explained that the plaintiff’s illness was such that his recovery could not be ascertained within a specified period. The plaintiff has decided to donate a power of attorney to one if his sons so that the said son could prosecute this case on his behalf. This court has noted that the matter in dispute between the plaintiff and the defendant is a parcel of land of approximately 101 acres. This court is aware that land is a sensitive issue in this country. In most instances, courts have leaned towards deciding land cases on its merits and not on technicalities.
In the present case, the plaintiff has persuaded this court that he was prevented by his illness from pursuing the prosecution of this case. However, this court has noted that unless the plaintiff is issued with an ultimatum, this suit will remain pending for an indefinite period of time. For the time being, I will disallow the application for dismissal of the suit for want of prosecution. The plaintiff is ordered to conclude discovery and take the necessary steps to fix this suit for hearing within three months from today’s date in default thereof, the defendants shall be at liberty to renew the application for the dismissal of the suit for want of prosecution. The defendants shall have the costs of this application.
DATED at KERICHO this 7th day of November 2007
L. KIMARU
JUDGE