[2018] KEHC 4062 (KLR)
The court found that the plaintiff's explanation for the delay in prosecuting the suit was satisfactory, particularly in light of the confusion arising from the consolidation of the two suits and the plaintiff's honest belief that actions in HCCC No. 184 of 2010 applied to both matters. The court held that no...
Source-derived case information.
- Citation
- [2018] KEHC 4062 (KLR)
- Parties
- Plaintiff: Newton Omondi Osiemo; Defendant: Nation Media Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 183 & 184 of 2010
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff granted 120 days to prosecute the suit.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Consolidation of Suits, Expeditious Trial, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Newton Omondi Osiemo
Plaintiff
Nation Media Group Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the consolidated suits should be dismissed for want of prosecution.
- 2 Whether the plaintiff has provided a satisfactory explanation for the delay in prosecuting the suit.
- 3 Whether the actions taken in the lead file apply to both consolidated suits.
Ratio Decidendi
The court found that the plaintiff's explanation for the delay in prosecuting the suit was satisfactory, particularly in light of the confusion arising from the consolidation of the two suits and the plaintiff's honest belief that actions in HCCC No. 184 of 2010 applied to both matters. The court held that no prejudice would be suffered by the defendant if the suit was not dismissed. In the interest of justice and to ensure expeditious disposal, the court declined to dismiss the suit for want of prosecution and instead ordered that the suit be prosecuted within 120 days, failing which it would stand dismissed.
Court Disposition
Suit not dismissed; plaintiff granted 120 days to prosecute the suit.
Orders
- The suit shall be prosecuted within the next 120 days from the date of this ruling, failing which it shall stand dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 183 OF 2010 CONSOLIDATEDWITH CIVIL SUIT NO. 184 OF 2010
NEWTON OMONDI OSIEMO....................................PLAINTIFFF
VERSUS
NATION MEDIA GROUP LIMITED........................DEFENDANT
RULING
1. On 26th March, 2018 the Court served the parties herein with a Notice in Civil Suit No. 183 of 2010 to Show Cause why the suits should not be dismissed for want of prosecution. The Notice was listed for 13th April, 2018 and pursuant to the court ‘directions, the Plaintiff filed a Replying Affidavit dated 27th June, 2018 sworn by the Plaintiff’s Advocate Owino Opiyo in response to the notice.
2. It is deponed that on 24th August, 2012, the parties herein recorded a consent to have the instant suit consolidated with HCCC No. 184 of 2010. That since then, there has been a confusion as to the lead file after consolidation but according to the Plaintiff’s records, the Plaintiff all along dealt with HCCC No. 184 of 2010, and HCCC No. 183 of 2010 was all along brought with it. The Plaintiff has enumerated the steps taken in HCCC 184 of 2010 in an effort to have the suit heard.
3. I have considered the Affidavit of the Plaintiff and I have also perused the court record. There is a letter of consent dated 16th August, 2012 and filed on 24th August, 2012 consolidating HCCC NO. 183 of 2010 and HCCC NO. 184 of 2010. From the annexures to the Replying Affidavit, it is evident that the plaintiff has been dealing in the believe that HCCC 184 of 2010 was the lead filed. This is so because the letters annexed only refer to HCCC NO. 184 of 2010. Since the two files were consolidated, it would have been proper for the Plaintiff to refer to them as HCCC 183 of 2010 as Consolidated with HCCC 184 of 2010. The plaintiff however depones that the mistake in failing to indicate that the files are consolidated was an honest one on their part.
4. As deponed in the Replying Affidavit and after careful consideration of the events and correspondences in this matter, I find that the actions in HCCC NO. 184 of 2010 were intended to apply to HCCC 183 of 2010 pursuant to the consolidation order. Order 17 Rule 2 (2) of the Civil Procedure Rules, 2010 empowers this court to absorb a party who provides a satisfactory explanation as to why the suit should not be dismissed. It is provides that “If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.”
5. I have considered the Plaintiff’s explanation and I find that no prejudice will be suffered by the Defendant if the suit is not dismissed. Therefore, in the interest of justice, it would be just and fair to grant the Plaintiffs a chance to prosecute their cases.
6. Since this is a long outstanding matter having been filed in the year 2010, there is need to have the same prosecuted expeditiously and I do order that the suit be prosecuted within the next 120 days from the date of this ruling failure to which it shall stand dismissed.
Dated, Signed and Delivered at Nairobi this 20thday of September, 2018
.........................
L. NJUGUNA
JUDGE
In the presence of:
..........................................For the Plaintiff
.......................................For the defendant