[2012] KEHC 1917 (KLR)
The court found that the dismissal of the suit for want of prosecution was irregular because no notice was given to the parties before the order was made. The Plaintiff, as administrator of the deceased's estate, had locus standi to bring the suit for terminal dues and benefits. Both parties contributed to the delay...
Source-derived case information.
- Citation
- [2012] KEHC 1917 (KLR)
- Parties
- Plaintiff: Patrick Kisaka Muniafu; Defendant: Total Kenya Limited
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 83 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application to set aside dismissal allowed; suit reinstated; no order as to costs.
- Judges
- AO Muchelule
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Locus Standi, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kisaka Muniafu
Plaintiff
Total Kenya Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution was regular and in accordance with the law.
- 2 Whether the Plaintiff had locus standi to bring the suit for terminal dues and benefits.
- 3 Whether the suit was frivolous, vexatious, or an abuse of the court process.
Ratio Decidendi
The court found that the dismissal of the suit for want of prosecution was irregular because no notice was given to the parties before the order was made. The Plaintiff, as administrator of the deceased's estate, had locus standi to bring the suit for terminal dues and benefits. Both parties contributed to the delay in prosecuting the matter, but the lack of notice rendered the dismissal procedurally improper. The court exercised its discretion to set aside the dismissal order and reinstate the suit, holding that justice required the parties be given an opportunity to be heard on the merits. No order as to costs was made due to the shared responsibility for the delay.
Court Disposition
Application to set aside dismissal allowed; suit reinstated; no order as to costs.
Orders
- The order dismissing the suit for want of prosecution is set aside.
- The suit is reinstated.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Civil Suit 83 of 2004
PATRICK KISAKA MUNIAFU…………………………….PLAINTIFF
~VERSUS~
TOTAL KENYA LIMITED……………………………………DEFENDANT
RULING
The Plaintiff is the administrator of the estate of the deceased Nicholas Lukorito Kisaka who died following a fatal road accident on 6/6/2000 along Nakuru-Nairobi Highway. The Plaintiff alleged that the deceased was by the time employed by the Defendant. The suit was brought to claim terminal dues and benefits arising from the death. The dues and benefits were said to be Ksh.1,523,898/55. The Defendant filed a defence denying that the deceased was its employee or that it was entitled to pay the dues and benefits. On 20/8/2008 the Defendant filed a chamber application dated 14/5/2007 seeking to have the suit struck out and/or dismissed with costs because it was frivolous and vexatious as the Plaintiff did not have the locus standi to bring it. It was also alleged that the plaint would otherwise prejudice, embarrass and delay the fair trial of the action, and that the suit was an abuse of the process of the court. The application was brought under the then Order VI rule 13 (1) (b), ( c ) and (d) of the Civil Procedure Rules. The Plaintiff filed a replying affidavit to oppose the application.
On 24/2/2010 the Defendant went to the registry and was allocated 6/12/2010 as the date for the hearing of the application. It would appear that the date was not served and the parties went quiet.
On 20/7/2011 the court on its own motion dismissed the suit for want of prosecution. It is evident that there was no notice to the parties. I agree with the Plaintiff that the dismissal was irregular. I allow the application dated 17/8/2011 and set aside the order dismissing the suit. The suit is reinstated. In view of the fact that both parties have participated in the delay that has led to non-resolution of the case, I make no order as to costs.
Dated, signed and delivered at Bungoma this 3rd day of October, 2012.
A.O. MUCHELULE
JUDGE