[2012] KEHC 2115 (KLR)
The court found that although the court file had been missing for some time, the plaintiff was not sufficiently diligent, as the application for reconstruction was never filed. However, recognizing the circumstances and the plaintiff's attempts to explain the delay, the court exercised its discretion to grant the...
Source-derived case information.
- Citation
- [2012] KEHC 2115 (KLR)
- Parties
- Plaintiff: National Bank of Kenya; Defendant: Joseph Nyabando Okemwa
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 529 of 1994
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- conditional reprieve granted; suit not dismissed at this stage
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Reconstruction of Court File, 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
Joseph Nyabando Okemwa
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2.
- 2 Whether the plaintiff has provided sufficient cause for the delay in prosecuting the suit.
- 3 Whether the court file's disappearance justifies the plaintiff's inaction.
Ratio Decidendi
The court found that although the court file had been missing for some time, the plaintiff was not sufficiently diligent, as the application for reconstruction was never filed. However, recognizing the circumstances and the plaintiff's attempts to explain the delay, the court exercised its discretion to grant the plaintiff a final opportunity. The plaintiff was directed to prepare, file, and prosecute an application for reconstruction of the court file within 60 days, and thereafter to fix the matter for hearing within 90 days. Failure to comply would result in automatic dismissal of the suit. The court thus balanced the need for expeditious disposal of cases with the interests of...
Court Disposition
conditional reprieve granted; suit not dismissed at this stage
Orders
- The plaintiff shall prepare, file, and prosecute its application for reconstruction of the court file within 60 days.
- The matter shall be fixed for hearing within 90 days thereafter.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Civil Case 529 of 1994
NATIONAL BANK OF KENYA……………...………...PLAINTIFF
VERSUS
JOSEPH NYABANDO OKEMWA…………………DEFENDANT
RULING
This case was filed way back in 1994, over 18 years ago. No action has been taken towards its prosecution since November 2005. On 27/4/2012, this court took out a notice to the plaintiff pursuant to Order 17 Rule 2, to show cause why the suit cannot be dismissed for want of prosecution. Lucy Gichuki, advocate for the plaintiff swore an affidavit dated 4/6/2012 opposing the dismissal. She deponed that the suit had been listed for hearing on 26/9/06 but the file went missing and efforts to trace it have been fruitless. Letters from the plaintiff’s counsel to the Deputy Registrar of this court are exhibited, (annexure 1). The plaintiff prepared an application for reconstruction of the file in 2010 but it was not filed because the counsel dealing with the matter left the firm. It is counsel’s contention that the failure to prosecute the case is not intentional.
I have considered the contents of the counsel’s affidavit and it seems for some time, the court file was missing. However, the plaintiff has not been diligent enough because the advocate should have moved the court for reconstruction of the court file. The application for reconstruction that was exhibited was never filed. The court will indulge the plaintiff and direct that the plaintiff do prepare, file and prosecute its application for reconstruciton within 60 days and thereafter the matter be fixed for hearing within 90 days, failing which the appeal will automatically stands dismissed.
DATED and DELIVERED this 4th day of October, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Koech holding brief for Mr. Omingo for the plaintiff
N/A for the respondent
Kennedy – Court Clerk