[2012] KEHC 3209 (KLR)
The court found that although the plaintiff had previously taken steps to prosecute the suit, there was an unexplained period of inaction exceeding 1 year and 10 months after the defence counsel withdrew. The plaintiff failed to provide a satisfactory explanation for this delay. However, in the interests of justice...
Source-derived case information.
- Citation
- [2012] KEHC 3209 (KLR)
- Parties
- Plaintiff: National Bank of Kenya; Defendant: John Imbayi Amukoye
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 619 of 1994
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Conditional continuation of suit; suit to be heard within 90 days or stand dismissed.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, 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
Plaintiff
John Imbayi Amukoye
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether the plaintiff has provided sufficient explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that although the plaintiff had previously taken steps to prosecute the suit, there was an unexplained period of inaction exceeding 1 year and 10 months after the defence counsel withdrew. The plaintiff failed to provide a satisfactory explanation for this delay. However, in the interests of justice and considering the history of the matter, the court exercised its discretion not to dismiss the suit immediately. Instead, the court ordered that the suit be set down for hearing and concluded within 90 days, failing which it would stand dismissed. This approach balanced the need for expeditious disposal of cases with the plaintiff's right to be heard.
Court Disposition
Conditional continuation of suit; suit to be heard within 90 days or stand dismissed.
Orders
- The suit shall be set down for hearing and be heard within the next 90 days from the date of this ruling.
- If the suit is not heard within 90 days, it shall stand dismissed for want of prosecution.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE 619 OF 1994
NATIONAL BANK OF KENYA…………..….………PLAINTIFF
VERSUS
JOHN IMBAYI AMUKOYE……………….……….DEFENDANT
RULING
This case was filed on 19/9/1994, about 18 years ago. On 27/4/2012, the court issued notice on the plaintiff under Order 17 Rule 2 of the Civil Procedure Rules, to show cause why this suit should not be dismissed for want of prosecution. Kamau Muthanwa, Advocate for the plaintiff filed an affidavit opposing the dismissal. He stated the various steps taken in this matter since 2008 with a view to having the case heard. He deponed that the plaintiff’s case was heard on 21/1/2009 and from 10/3/09 the defence counsel filed an application seeking to withdraw and the said application was not determined till 21/7/2010. It is his view that the plaintiff has been keen on prosecuting this matter and beseeched the court to allow the plaintiff prosecute the suit to its conclusion in the interests of justice.
Even if the defence counsel’s application was pending from 2009, it was determined on 21/7/2010, when the defence counsel withdrew from the case. it is now over 1 year 10 months since any steps were taken towards prosecution of this case. The plaintiff has not explained why the inaction, if indeed the plaintiff was keen to prosecute the suit for that long. Since counsel has been awaken from slumber, if he is indeed serious, the court directs that this suit be set down for hearing and be heard within the next 90 days failing which it stands dismissed.
DATED and DELIVERED this 5th day of July, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
No appearance for the plaintiff
John Imbayi Amukoye – defendant in person
Kennedy – Court Clerk