[2009] KEHC 3395 (KLR)
The court held that the application for dismissal for want of prosecution was premature because discovery had not been conducted, and the matter was therefore not ripe for hearing. Furthermore, Order XVI Rule 5 gives the defendant the first option to fix the matter for hearing and serve a hearing notice on the...
Source-derived case information.
- Citation
- [2009] KEHC 3395 (KLR)
- Parties
- Plaintiff: Neleah Rwamba; Defendant: Alphaxad Njeru; Defendant: Municipal Council Embu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 80 of 2007
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal dismissed with costs to the plaintiff
- Judges
- J Karanja
- Legal Topics
- Dismissal for Want of Prosecution, Discovery Obligations, Order Xvi Rule 5, Order X Rule 11a
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Neleah Rwamba
Plaintiff
Alphaxad Njeru
Defendant
Municipal Council Embu
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order XVI Rule 5.
- 2 Whether the matter was ripe for hearing in the absence of discovery.
- 3 Whether the defendant was required to fix the matter for hearing before seeking dismissal.
Ratio Decidendi
The court held that the application for dismissal for want of prosecution was premature because discovery had not been conducted, and the matter was therefore not ripe for hearing. Furthermore, Order XVI Rule 5 gives the defendant the first option to fix the matter for hearing and serve a hearing notice on the plaintiff before seeking dismissal. The 2nd defendant failed to take this step. The delay in prosecuting the matter was not inordinate or inexcusable and had been adequately explained. Dismissing the suit at this stage would be draconian. Accordingly, the application for dismissal was dismissed with costs to the plaintiff.
Court Disposition
application for dismissal dismissed with costs to the plaintiff
Orders
- The application for dismissal for want of prosecution is dismissed.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Case 80 of 2007
NELEAH RWAMBA……………........………………………….PLAINTIFF
VERSUS
ALPHAXAD NJERU………………….………………..1ST DEFENDANT
MUNICIPAL COUNCIL EMBU………....…………….2ND DEFENDANT
RULING
This suit was filed before this court on 25/6/2007. The 2nd defendant filed his defence on 26/7/2007 while the 1st defendant filed his defence on 10/8/2007. There was no reply to the defences and so pleadings closed 14 days after the filing of the defence. From the record, it is clear that after pleadings closed, the plaintiff’s counsel did not serve his documents on counsel for the defendant. Essentially therefore, no documents were filed and discovery as provided for under Order X Rule 11A was not done. Instead of doing discovery or of taking a hearing date for hearing of the suit, the 2nd defendant rushed to court with the application dated 13/3/2008 seeking for the dismissal of the entire suit for want of prosecution under Order XVI Rule 5.
I have considered the said application, the grounds, the Preliminary Objection raised by the counsel for the plaintiff which was argued out within the application. I have also considered the relevant provisions of the law. I agree with Mr. Mugo for the plaintiff that this matter was infact not ripe for hearing since discovery had not been done. I further note that Order XVI Rule 5 gives an aggrieved defendant the 1st option to fix the matter for hearing himself, before seeking orders for dismissal. The defendant herein never took that option. Counsel for the 2nd defendant should have taken the first option under Order XVI Rule 5 and taken a hearing date and served a hearing notice on the plaintiff. If after serving such notice the plaintiff still failed to attend court or take any other action, then in those circumstances the defendant would be justified to seek a dismissal of the case. The delay in this matter was not inordinate or inexcuseable. The same has been adequately explained. My finding is that it would be draconian to dismiss the matter for want of prosecution. The application for dismissal was in my considered view rash and seemingly premature. The same ought to and is hereby dismissed with costs to the plaintiff.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 17th day of June 2009.
In presence of:-Mr. Maina for applicant.
W. KARANJA
JUDGE
17/6/2009