[2018] KEHC 4058 (KLR)
The court found that although there had been a period of inactivity exceeding one year, the plaintiff had provided reasons for the delay, including unsuccessful negotiations and prior court applications. The court exercised its discretion not to dismiss the suit immediately, noting the plaintiff's expressed interest...
Source-derived case information.
- Citation
- [2018] KEHC 4058 (KLR)
- Parties
- Plaintiff: National Social Security Fund; Defendant: Erick K. Musau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 257 of 2012
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit not dismissed; conditional order for prosecution within six months.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Order 11 Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Social Security Fund
Plaintiff
Erick K. Musau
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inactivity for over a year.
- 2 Whether the reasons provided by the plaintiff justify the delay in prosecuting the matter.
Ratio Decidendi
The court found that although there had been a period of inactivity exceeding one year, the plaintiff had provided reasons for the delay, including unsuccessful negotiations and prior court applications. The court exercised its discretion not to dismiss the suit immediately, noting the plaintiff's expressed interest in pursuing the matter and the previous activity on the file. However, the court emphasized the age of the case and ordered that it must be prosecuted within six months from the date of the ruling, failing which it would stand dismissed automatically. This approach balanced the need for expeditious disposal of cases with the interests of justice and the right to be heard.
Court Disposition
Suit not dismissed; conditional order for prosecution within six months.
Orders
- The suit shall be prosecuted within six months from the date of this ruling, failing which it shall stand dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL SUIT NO. 257 OF 2012
NATIONAL SOCIAL SECURITY FUND.......................................PLAINTIFF
VERSUS
ERICK K. MUSAU........................................................................DEFENDANT
RULING
The matter herein was filed in the year 2012 and on 6th March 2017, the plaintiff amended its plaint. Due to the slow pace in which the matter was being prosecuted, the court on its own motion served the parties herein with a notice to show cause why it should not be dismissed for want of prosecution. It came up for the hearing of the said notice on 13th April 2018 when the court was informed that parties were negotiating the matter out of court and they sought for a mention date.
The matter was mentioned on 4th June 2018 but on the said date, the court was informed that parties had not reached any settlement. The court stood over the matter to 6th July 2018 for Notice to Show Cause, when Counsel for the plaintiff, sought leave of the court to file an affidavit in response to the notice to show cause, which he filed on 19th July 2018.
The court has perused the said affidavit and the reasons given for the delay in prosecuting the matter are that; parties were initially negotiating the matter out of court but the negotiations did not bear any fruits, that several applications have been filed in the matter which have come up for hearing on various dates, that the last time the matter was in court, was on 30th March, 2017 when the Deputy Registrar ordered the parties to comply with Order 11 of the Civil Procedure Rules. After that, no action was taken by either party for a period of a year and that explains why it was listed for notice to show cause.
I have considered the affidavit filed in response to the notice to show cause. It has set out, at length, what has been happening in the matter until 30th March 2018 when it was last in court. The court has noted that by that date, no action had been taken for slightly over a year though previously the file was active. Counsel for the plaintiff has indicated that his client is still interested in pursuing the matter. Parties were ordered to comply with order 11 but they are yet to.
In the interest of justice, this court will not dismiss the mater but since it is an old one, it is hereby ordered that it be prosecuted within six months from the date of this ruling failing which, it shall stand dismissed.
Dated, Signed and Delivered at Nairobi this 27thday of September, 2018
…………………………..
L. NJUGUNA
JUDGE
In the presence of:
…………………………….. For the Plaintiff
……………………………… For the Defendant