[2018] KEHC 9415 (KLR)
The court found that although the plaintiffs attributed the delay to pending appeals, those appeals related to bankruptcy proceedings and did not directly affect the present suit. However, in the wider interests of justice, the court exercised its discretion to allow the suit to proceed on its merits, finding that...
Source-derived case information.
- Citation
- [2018] KEHC 9415 (KLR)
- Parties
- Plaintiff: Oceanfreight Transport Co. Ltd; Plaintiff: Livinstone Ndungu Waithaka; Plaintiff: Maina Murage t/a Maina Murage & Co. Advocates; Defendant: Royal Media Services Limited; Defendant: Samuel Kamau Macharia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 36 of 2012
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- sufficient cause shown; suit not dismissed
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Notice to Show Cause
- 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
Oceanfreight Transport Co. Ltd
Plaintiff
Livinstone Ndungu Waithaka
Plaintiff
Maina Murage t/a Maina Murage & Co. Advocates
Plaintiff
Royal Media Services Limited
Defendant
Samuel Kamau Macharia
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the plaintiffs have shown sufficient cause to prevent dismissal of the suit for want of prosecution.
- 2 Whether the pendency of related appeals justifies the delay in prosecuting the present suit.
Ratio Decidendi
The court found that although the plaintiffs attributed the delay to pending appeals, those appeals related to bankruptcy proceedings and did not directly affect the present suit. However, in the wider interests of justice, the court exercised its discretion to allow the suit to proceed on its merits, finding that sufficient cause had been shown. The court ordered compliance with Order 11 of the Civil Procedure Rules and directed that the suit be fixed for directions within ninety days, failing which the suit would stand dismissed.
Court Disposition
sufficient cause shown; suit not dismissed
Orders
- Order 11 Civil Procedure Rules to be complied with.
- Suit to be fixed for directions within ninety (90) days from the date hereof.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 36 OF 2012
OCEANFREIGHT TRANSPORT CO. LTD.............1ST PLAINTIFF
LIVINSTONE NDUNGU WAITHAKA.....................2ND PLAINTIFF
MAINA MURAGE.......................................................3RD PLAINTIFF
T/A MAINA MURAGE & CO. ADVOCATES
VERSUS
ROYAL MEDIA SERVICES LIMITED.................1ST DEFENDANT
SAMUEL KAMAU MACHARIA.......................... 2ND DEFENDANT
RULING
1. A Notice to show cause dated 2nd February, 2018 was issued by the court under order 17 rule (2) Civil Procedure Rules for the Plaintiff to show cause why the suit should not be dismissed for failure to prosecute the same.
2. The Plaintiff’s side filed an affidavit to show cause. The delay in prosecuting this suit is blamed on two appeals in the Court of Appeal that were to be heard first as they are at the core of the case herein. That one of the appeals has been determined and the other is still pending. The Plaintiffs urged the court to have their suit heard during the last quarter of this year when the pending appeal is expected to have been determined.
3. The Defendants counsel in his submissions supported the dismissal and stated that the pendency of the appeal has no import on this defamation suit.
4. Although the delay is blamed on the pending appeals in other related matters, I agree with the Defendants’ counsel’s submission’s that the determination of the two appeals should not be a bar to the hearing of this suit. The two appeals Nbi CA No. 62 of 2011 Samuel K Macharia and Purity Gathoni Githae v Oceanfreight Transport Co. Ltd and Nbi CA No. 85 of 2011 Purity Gathoni Macharia and S. K. Macharia are said to have been pending for 7-8 years. It is not in dispute that the appeals touch on Bankruptcy proceedings. The same therefore do not directly touch on the proceedings herein.
5. To serve the wider interests of justice, this court is however inclined to allow this case to be heard on merits. Consequently, I hold that sufficient cause has been shown. Order 11 Civil Procedure Rules to be complied with and suit fixed for directions within ninety (90) days from the date hereof. In default the suit to stand dismissed. Costs in cause.
Date, signed and delivered at Nairobi this 26th day of July, 2018
B. THURANIRA JADEN
JUDGE