[2019] KEHC 5206 (KLR)
The court found that the plaintiff had not provided a satisfactory explanation for the five-year delay in prosecuting the suit. However, considering the interest of justice and the plaintiff's expressed readiness to proceed now that the defendant has been traced, the court exercised its discretion to spare the suit...
Source-derived case information.
- Citation
- [2019] KEHC 5206 (KLR)
- Parties
- Plaintiff: Olympic Petroleum Limited; Defendant: Ahmed Ibraim
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 450 of 2014
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit spared from dismissal; conditional order for prosecution within 120 days.
- Judges
- LM Njuguna
- 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
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Parties
Olympic Petroleum Limited
Plaintiff
Ahmed Ibraim
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to prolonged inactivity by the plaintiff.
- 2 Whether the reasons advanced by the plaintiff for the delay are sufficient to warrant the suit being spared from dismissal.
Ratio Decidendi
The court found that the plaintiff had not provided a satisfactory explanation for the five-year delay in prosecuting the suit. However, considering the interest of justice and the plaintiff's expressed readiness to proceed now that the defendant has been traced, the court exercised its discretion to spare the suit from dismissal. The court ordered that the matter must be prosecuted within 120 days from the date of the ruling, failing which it would stand dismissed automatically. This decision balances the need for expeditious disposal of cases with the right of parties to be heard on the merits.
Court Disposition
Suit spared from dismissal; conditional order for prosecution within 120 days.
Orders
- The suit shall be prosecuted within 120 days from the date of this ruling.
- If the suit is not prosecuted within 120 days, it shall stand dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL SUIT NO. 450 OF 2014
OLYMPIC PETROLEUM LIMITED.................................PLAINTIFF
VERSUS
AHMED IBRAIM...............................................................DEFENDANT
RULING
This matter was listed for notice to show cause why it should not be dismissed for want of prosecution on the 21st June, 2019 when counsel for the Plaintiff sought leave to file an affidavit in response thereto.
The court has considered the averments contained in the affidavit sworn by Josephine Kyalo on 4th day of July, 2019. Therein, the deponent who is the Advocate on record for the Plaintiff avers that, the reason for the delay was due to the disappearance of the defendant and a pending criminal case being criminal case number 1794/2014 which is related to this matter and in which the Plaintiff herein is the accused person.
She avers that, the Defendant has now been traced and she is now ready and willing to have the matter prosecuted expeditiously. She has urged the court not to dismiss the matter but to give the Plaintiff a chance to be heard on merits.
The court has perused the record and notes that the matter was filed way back in the year 2014 and since then, nothing much has been done by the Plaintiff to prosecute the matter. The record also shows that interlocutory judgment was entered against the Defendant on the 24th February, 2015 and thereafter no action was taken until the matter was first listed for notice to show cause on the 29th June, 2018.
In my considered view, no good reason has been given by the Plaintiff why the suit has dragged in court for the last five years. However, in the interest of justice, the court will spare the suit and since it’s an old matter it is hereby ordered that the same be prosecuted within 120 days from today failing which it shall stand dismissed.
Dated, Signed and Delivered at Nairobi this 25th Day of JULY, 2019.
.......................
L. NJUGUNA
JUDGE
In the Presence of
.....................For the Applicant
..................For the Respondent