[2010] KEHC 166 (KLR)
The court found that the respondent's delay in prosecuting the reference was not reasonably explained and amounted to indolence rather than mere oversight. The respondent's failure to provide a satisfactory explanation for the delay meant that the court could not excuse the inaction. The applicant had been unjustly...
Source-derived case information.
- Citation
- [2010] KEHC 166 (KLR)
- Parties
- Applicant: Njagi Wanjiru & Co. Advocates; Respondent: The City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 578 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Dismiss Reference for Want of Prosecution
- Outcome
- application allowed
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Njagi Wanjiru & Co. Advocates
Applicant
The City Council of Nairobi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Dismiss Reference for Want of Prosecution
Legal Issues
- 1 Whether the respondent's reference should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the delay in prosecuting the reference was excusable or sufficiently explained.
Ratio Decidendi
The court found that the respondent's delay in prosecuting the reference was not reasonably explained and amounted to indolence rather than mere oversight. The respondent's failure to provide a satisfactory explanation for the delay meant that the court could not excuse the inaction. The applicant had been unjustly prevented from enjoying the benefit of the certificate of taxation due to the non-prosecuted reference. Applying the principle that justice delayed is justice denied, the court concluded that the interests of justice required the dismissal of the respondent's reference for want of prosecution.
Court Disposition
application allowed
Orders
- The respondent's reference dated 11th October 2007 is dismissed for want of prosecution.
- Costs of the Notice of Motion are to be borne by the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
CIVIL CASE NO. MISC.578 OF 2007
NJAGI WANJIRU & CO. ADVOCATES.......................................................................................PLAINTIFF
VERSUS
THE CITY COUNCIL OF NAIROBI.............................................................................................DEFENDANT
RULING
The applicant in the Notice of Motion dated 28th April 2010, prays that the Objector/Respondent’s Reference dated 11th October 2007, be dismissed for want of prosecution and that costs of the Notice of Motion be borne by the Respondent.
The application is premised on the grounds that the objection has not been prosecuted and that no action has been taken in that regard since the same was adjourned on 5th December, 2007. Also that justice demands that the orders sought herein be granted to bring to an end the objector’s unjust and unfair thwarting of the concretization of the certificate of taxation dated 17th July, 2007. In opposing the Notice of Motion the objector filed a Replying Affidavit sworn by its counsel on 28th May 2010, wherein it is deponed that failure to prosecute the objection proceedings by not relisting the same for hearing after the adjournment was due to inadvertence.
The facts, as stated in the Notice of Motion and supporting affidavit, are not disputed and are proved by the record. In paragraph 5 of the Replying Affidavit which is all that has been relied upon in opposing the application, the Objector admits that justice demands that matters before court should be determined expeditiously and without undue delay. Although stating that the delay on their part is not intentional, the same is not explained in the Replying Affidavit. Counsel holding brief for the respondents’ advocate did not attempt to explain the delay either.
It is trite that, to be excusable, inadvertence which causes the delay of proceedings must be reasonably explained to the satisfaction of the court. In the present case, it is not. The inadvertence referred to in the Replying Affidavit, given the facts as per the record is, in my view, more in the nature of indolence than an oversight. The applicant has been kept from enjoying the fruits of the Taxation ruled in his favour, by reason of the non prosecuted reference. Clearly, the maxim “Justice delayed is justice denied” applies in favour of the applicant.
I find that the application has merit, and is not sufficiently opposed. In the interests of justice the same is hereby allowed as prayed.
DATED, SIGNED and DELIVEREDat NAIROBI this 2ND day of DECEMBER, 2010
M.G. MUGO
JUDGE
In the presence of :
Mr. Njage WanjeruFor the Applicant
No appearance For the Respondent