[2012] KEHC 4186 (KLR)
The court found that although the plaintiff attributed the delay in prosecuting the suit to the file being missing, there was insufficient explanation as to why no further action was taken when the file was available, nor why the plaintiff did not apply to have the file kept in the strong room. The court held that...
Source-derived case information.
- Citation
- [2012] KEHC 4186 (KLR)
- Parties
- Plaintiff: National Bank of Kenya Ltd; Defendant: Techno Press (K) Ltd; Defendant: Joseph Ondingo Agola; Defendant: Cephas Odhach Agola
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 411 of 1994
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
- Outcome
- Conditional extension granted; suit to be dismissed if not prosecuted within 90 days.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Judicial Discretion, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Bank of Kenya Ltd
Plaintiff
Techno Press (K) Ltd
Defendant
Joseph Ondingo Agola
Defendant
Cephas Odhach Agola
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the plaintiff has provided sufficient explanation for the delay in prosecuting the suit.
- 3 Whether the court should exercise its discretion to allow the suit to proceed.
Ratio Decidendi
The court found that although the plaintiff attributed the delay in prosecuting the suit to the file being missing, there was insufficient explanation as to why no further action was taken when the file was available, nor why the plaintiff did not apply to have the file kept in the strong room. The court held that the plaintiff had been lax in prosecuting the suit. However, exercising its discretion, the court granted the plaintiff a final opportunity to do discovery and set the suit down for hearing within 90 days, failing which the suit would stand dismissed. The plaintiff was ordered to bear the costs of the notice to show cause.
Court Disposition
Conditional extension granted; suit to be dismissed if not prosecuted within 90 days.
Orders
- The plaintiff is allowed 90 days within which to do discovery and set the suit down for hearing.
- In default of compliance, the suit will stand dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAKURU
Civil Case 411 of 1994
NATIONAL BANK OF KENYA LTD.....……………..…PLAINTIFF
VERSUS
TECHNO PRESS (K) LTD……………………...1ST DEFENDANT
JOSEPH ONDINGO AGOLA…..……………….2ND DEFENDANT
CEPHAS ODHACH AGOLA………..…………..3RD DEFENDANT
RULING
This suit was filed way back in 1994. Since then it has never been prosecuted. The court record shows that it was last in court on 16/6/03 when it was stood over generally. On 27/4/2012, the court issued a notice to show cause to the parties herein. As a result Kenyariri & Associates Advocates have filed a replying affidavit opposing its dismissal for the reason that this file has been missing whenever they wanted to take action. Counsel annexed to his affidavit some correspondence with the Deputy Registrar. One letter is dated 27/8/04 when the Deputy Registrar wrote to the plaintiff’s advocate on record indicating that the file was now available and they could take dates. After that, this court has no idea what happened because they never took any date in 2005 as had been intimated by the said advocates. The next letter to the Deputy Registrar is on 20/7/07 and 2/11/2001. If the file kept on going missing, the plaintiff’s counsel has not explained why he did not apply to have it kept in the strong room. Even if that was the case, the plaintiff has also been lax in prosecuting the suit. The court will exercise its discretion and allow the plaintiff a period of 90 days within which to do discovery and set the suit down for hearing in default it will stand dismissed. The plaintiff to bear costs of the notice to show cause.
DATED and DELIVEED this 8th day of June, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Achola holding brief for Mr. Kerongo for the plaintiff
N/A for the defendants
Kennedy – Court Clerk