[2016] KEHC 5904 (KLR)
The court found that although there was a prolonged delay in prosecuting the suit, the explanation provided by the plaintiff's counsel indicated that the delay was due to counsel's mistake rather than the plaintiff's fault. The court emphasized that the mistake of counsel should not be visited upon the party and...
Source-derived case information.
- Citation
- [2016] KEHC 5904 (KLR)
- Parties
- Plaintiff: Ole Kajuado County Council; Defendant: Athi Stores Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 116 of 2011
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal of Suit for Want of Prosecution
- Outcome
- Application for dismissal of suit dismissed; suit to proceed subject to compliance with pre-trial directions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order 17 Rule 2, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ole Kajuado County Council
Plaintiff
Athi Stores Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal of Suit for Want of Prosecution
Legal Issues
- 1 Whether the delay in prosecuting the suit is prolonged and inexcusable.
- 2 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(3) of the Civil Procedure Rules.
- 3 Whether the mistake of counsel should be visited upon the party.
Ratio Decidendi
The court found that although there was a prolonged delay in prosecuting the suit, the explanation provided by the plaintiff's counsel indicated that the delay was due to counsel's mistake rather than the plaintiff's fault. The court emphasized that the mistake of counsel should not be visited upon the party and that, in the interests of justice, parties should be given an opportunity to have their cases heard on merit. Consequently, the court declined to dismiss the suit and instead directed the parties to comply with Order 11 of the Civil Procedure Rules within 30 days, granting the defendant liberty to apply should the plaintiff fail to act. Costs of the application were awarded to the...
Court Disposition
Application for dismissal of suit dismissed; suit to proceed subject to compliance with pre-trial directions.
Orders
- Parties to comply with Order 11 of the Civil Procedure Rules within 30 days from the date of the ruling.
- Defendant at liberty to apply in the event of further delay by the plaintiff.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 116 OF 2011
OLE KAJUADO COUNTY COUNCIL ....................................................................PLAINTIFF
VERSUS
ATHI STORES LIMITED .................................................................................... DEFENDANT
RULING
On 6th November, 2015 this court gave directions relating to the application dated 26th February, 2015 filed by the defendant herein for the dismissal of the suit. As the record of the court then appeared incomplete the defendant was required to avail a copy for the defence said to have been filed on 19th March, 2010. This has now been done.
Both parties filed submissions which I have read. The application is premised on the provisions of Order 17 Rule 2 (3) of the Civil Procedure Rules.
The pleadings were closed on 19th March, 2010 when the defence was filed. As at the time the application for dismissal was filed, it was more than 4 years yet no steps had been taken to prosecute the suit.
The plaintiffs’ counsel has blamed the delay on misplacement of the file in the office and in the process of securing documents from his client precious time was lost.
As correctly submitted, the test is whether the delay is prolonged and inexcusable and whether justice can be done despite the dealy. See IVITA V. KYUMBU (1984) KLR 448 AT PG 440.
I have related the application to the pleadings on record , the submissions by both learned counsel and the provisions of law ordinarily, courts should endeavour to sustain actions brought before them rather than dismissing the same. Where the interests of justice demand, every party in deserving cases should have his day in court.
Counsel for the plaintiff should have notified his colleague that he was having some challenges in his office and some indulgence was required. He did not do so. That notwithstanding, it would be wrong to blame that on the plaintiff. As often stated, the mistake of counsel should not be visited on the party.
The foregoing being the case, I am inclined to give the plaintiff an opportunity to advance its cause by taking appropriate steps to facilitate the hearing. In that regard, parties herein, shall comply with order 11 of the Civil Procedure Rules within 30 days from the date hereof.
The defendant shall be at liberty to move the court in the event there is laxity on the part of the plaintiff. That is to say, liberty to apply is reserved
The defendant shall have the costs of this application.
Dated, signed and delivered at Nairobi this 15th day of March, 2016
A. MBOGHOLI MSAGHA
JUDGE