[2019] KEHC 4916 (KLR)
The court found that while the plaintiff's advocate was at fault for the delay, the principle that mistakes of counsel should not be visited on the client applies. However, the plaintiff also bears responsibility for ensuring the prosecution of its case. Given the age of the matter and the lack of proactive steps by...
Source-derived case information.
- Citation
- [2019] KEHC 4916 (KLR)
- Parties
- Plaintiff: National Social Security Fund; Defendant: Thomas Mongare Ongaga; Defendant: Joyce Kemunto Mongare
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 276 of 2012
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Plaintiff granted a final opportunity to prosecute the suit within 20 days; suit to stand dismissed if not prosecuted within that period.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Formal Proof, Interlocutory Judgment, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Social Security Fund
Plaintiff
Thomas Mongare Ongaga
Defendant
Joyce Kemunto Mongare
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 inaction by the plaintiff.
- 2 Whether the mistakes of counsel should be visited upon the client in the context of delay.
- 3 Whether the plaintiff should be granted a final opportunity to prosecute the suit.
Ratio Decidendi
The court found that while the plaintiff's advocate was at fault for the delay, the principle that mistakes of counsel should not be visited on the client applies. However, the plaintiff also bears responsibility for ensuring the prosecution of its case. Given the age of the matter and the lack of proactive steps by the plaintiff, the court exercised its discretion to grant the plaintiff a final opportunity to prosecute the suit within 20 days, failing which the suit would stand dismissed without the possibility of revival.
Court Disposition
Plaintiff granted a final opportunity to prosecute the suit within 20 days; suit to stand dismissed if not prosecuted within that period.
Orders
- The plaintiff is granted a last chance to prosecute its case within 20 days from the date of the ruling.
- If the plaintiff fails to prosecute the case within 20 days, the suit shall stand dismissed without the hope of revival.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 276 OF 2012
NATIONAL SOCIAL SECURITY FUND..................................PLAINTIFF
-VERSUS-
THOMAS MONGARE ONGAGA....................................1ST DEFENDANT
JOYCE KEMUNTO MONGARE....................................2ND DEFENDANT
R U L I N G
1. The parties to this case were issued with notices to show cause on 20th June, 2019 requiring them to offer an explanation as to why the suit ought not to be dismissed for want of prosecution.
2. In response thereto, Kennedy Modi, advocate for the plaintiff, urged this court to refer to his affidavit sworn on 17th March, 2018 with respect to a previous notice to show cause issued on 7th March, 2018.
3. Therein, the deponent stated in summary that the associate who had been instructed to ensure prosecution of the suit did not comply and has since left the firm of advocates, further stating that it is only upon being served with the initial notice to show cause on 14th March, 2018 that the deponent came to learn of the inaction in the matter.
4. I have taken the above facts into account. The record discloses that the suit was filed on 6th June, 2012. Thereafter, the plaintiff’s advocate took out summons to enter appearance and sought to effect service of the same upon the defendants, going further to lodge an application for extension of time for the validity of the said summons. The record shows that the application was granted by the court on 15th December, 2014.
5. It is also evident from the record that an affidavit of service was subsequently filed on 8th July, 2016 thereby confirming that service had been effected. It followed that the defendants did not enter appearance and/or file a defence, prompting the plaintiff to request for the entry of interlocutory judgment on that basis.
6. Going by the record, the court entered interlocutory judgment as prayed on 10th August, 2016 further directing that the matter proceeds for formal proof. Since then, no steps have been taken in prosecuting the suit.
7. Judging by the averments made in the affidavit, it is noted that the plaintiff’s advocate has admitted to being at fault albeit indirectly through the inadvertence of his former employee. The courts have stated and restated on various occasions that the mistakes of counsel ought not to be visited on the respective client as a matter of principle. That notwithstanding, it was just as much if not considerably the responsibility of the plaintiff to proactively ensure the prosecution of its case; there is no indication that this was at all done, thereby raising deep concerns given that this is a relatively old matter.
8. On the flip side, I am well aware that the suit was to proceed by way of formal proof. The plaintiff’s advocate admittedly failed it to some extent. That being the position, I will exercise my discretion in giving the plaintiff the benefit of the doubt.
9. Ultimately, the plaintiff is granted a last chance to prosecute its case within 20 days from today, failing which the same shall stand dismissed without the hope of revival.
Dated, signed and delivered at NAIROBI this 30th day of July, 2019
..........................
L. NJUGUNA
JUDGE
In the presence of:
...................................for the Plaintiff
............................. for the Defendants