[2015] KEHC 7275 (KLR)
The court found that although there was a period of inactivity, much of the delay was not attributable to either party but to circumstances such as changes in advocates and the matter being handled by multiple judges. The plaintiff's new advocates had taken steps to move the matter forward. The defendant failed to...
Source-derived case information.
- Citation
- [2015] KEHC 7275 (KLR)
- Parties
- Plaintiff: New Four Star Plus Limited; Defendant: Kenya Railways Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 575 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Judicial Discretion, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
New Four Star Plus Limited
Plaintiff
Kenya Railways Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application 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 delay in prosecuting the suit is inexcusable and prejudicial to the defendant.
- 3 Whether the plaintiff should be given a further opportunity to prosecute its case.
Ratio Decidendi
The court found that although there was a period of inactivity, much of the delay was not attributable to either party but to circumstances such as changes in advocates and the matter being handled by multiple judges. The plaintiff's new advocates had taken steps to move the matter forward. The defendant failed to demonstrate any real prejudice beyond the pendency of the suit as a liability in its books, and did not allege that a fair trial would be impossible due to the delay. The court held that a fair trial was still possible and that the plaintiff should be given a final opportunity to prosecute its case. Accordingly, the application for dismissal was declined, but the plaintiff was...
Court Disposition
application dismissed
Orders
- The application for dismissal for want of prosecution is dismissed.
- The plaintiff is directed to take discernable steps within 30 days after delivery of this ruling to progress the case.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO 575 OF 2010
NEW FOUR STAR PLUS LIMITED.................................................................PLAINTIFF
VERSUS
KENYA RAILWAYS LIMITED……….……….................……………………….DEFENDANT
RULING
The Defendant has applied by Notice of Motion dated 12th March 2014 for dismissal of the Plaintiff’s suit for want of prosecution. The application is brought under Sections 1A, 1Band3Aof theCivil Procedure Act (the Act) and Order 17, rule 2(1), (3) of theCivil Procedure Rules, 2010 (the Rules). By these sub-rules((1) and (3)), in any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
The grounds for the application are that the Plaintiff has not taken any material steps to prosecute its claim yet the plaint was filed on 25th November 2010. It is the Defendant’s case in this application that the continued existence and uncertainty of the suit is prejudicial to it. These grounds are buttressed by a supporting affidavit sworn by the Defendant’s advocate, Rose Onsare.
The Plaintiff filed a replying affidavit on 29th August 2014 sworn by Counsel, Kalvinder Singh Bhullar. Grounds of opposition to the application emerging from that replying affidavit include –
(i) That the application is malicious as written submissions with regard to an application for injunction dated 24th November 2010 were filed and the parties await ruling on the same.
(ii) That he took the conduct of this matter in February 2014 and has invited the Defendant to fix the matter for ruling twice.
(iii) That the mistakes of previous advocates should not be visited upon the Plaintiff who is keen on prosecuting the matter.
(iv) That the Defendant has not demonstrated how it will suffer injustice if the Plaintiff is allowed to prosecute the matter.
(v) That the Plaintiff has a claim well founded in law and it is in the interest of justice that it is granted the opportunity to prosecute its case.
The application was canvassed by way of written submissions. The court has considered those submissions together with the authorities cited.
The chronology of events in this case shows that since the institution of the claim which was accompanied by a chamber summons application under certificate of urgency, there have been numerous hurdles most of which are not due to the fault of either party. For instance, the file found itself before four Judges who issued orders for the application to be heard afresh or submissions filed and eventually it was stood over generally. It is evident that the parties had filed written submissions by 23rd February 2011 which was about three months after the filing of suit and the application.
Perhaps the only fault of the Plaintiff is that it did not persistently seek a date for ruling and seemed to have abandoned the matter (which has been explained as the interlude when it changed advocates). The new advocates since coming on record have invited the Plaintiff to fix the matter for ‘hearing’. This has been exhibited in the replying affidavit.
The Defendant’s supporting affidavit beyond stating that the continued pendency of the case is prejudicial to it, as it reflects as a liability in its books of accounts, there is not anymore. It has not been averred for instance that, because of the passage of time, a fair trial of the action will no longer be possible. It has not been alleged that witnesses or documents will no longer be available at the trial.
From the material now before the court, a fair trial of this suit is still possible without any further undue delay. It is therefore meet and just that the Plaintiff be accorded a last opportunity to prosecute its case.
It is in this spirit that the application at hand is declined. It is hereby dismissed. The Plaintiff is directed to take discernable steps within the next 30 days after delivery of this ruling in order to propel its case towards taking a date for ruling of the chamber summons and ultimately towards hearing of the main suit.
The Plaintiff shall bear the costs of the present application.
Orders accordingly.
Dated and delivered at Nairobi this 6th Day of May, 2015.
A.MBOGHOLI MSAGHA
JUDGE