[2018] KEHC 9654 (KLR)
Although there was a significant delay of about three years in prosecuting the suit, the court found that the Plaintiff should be given an opportunity to have the case heard on its merits. The court acknowledged the lack of diligence but held that the interests of justice and the overriding objectives of the Civil...
Source-derived case information.
- Citation
- [2018] KEHC 9654 (KLR)
- Parties
- Plaintiff: Patriotic Guards Ltd; Defendant: Kenya Electricity Generating Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1137 of 2006
- Procedural Posture
- Civil Application / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Overriding Objective, Expeditious Resolution, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patriotic Guards Ltd
Plaintiff
Kenya Electricity Generating Co. Ltd
Defendant
Procedural Posture
Civil Application / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the delay in prosecuting the suit is justified or excusable.
- 3 Whether the overriding objectives of the Civil Procedure Act preclude dismissal at this stage.
Ratio Decidendi
Although there was a significant delay of about three years in prosecuting the suit, the court found that the Plaintiff should be given an opportunity to have the case heard on its merits. The court acknowledged the lack of diligence but held that the interests of justice and the overriding objectives of the Civil Procedure Act favored allowing the suit to proceed, subject to strict timelines. The application for dismissal was therefore denied, but the Plaintiff was ordered to fix the suit for hearing within 120 days, failing which the suit would stand dismissed.
Court Disposition
application dismissed
Orders
- The application to dismiss the suit for want of prosecution is dismissed with costs to the Applicant.
- The Plaintiff to fix the suit for hearing within 120 days from the date hereof.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 1137 OF 2006
PATRIOTIC GUARDS LTD ...........................................................PLAINTIFF
VERSUS
KENYA ELECTRICITY GENERATING CO. LTD..................DEFENDANT
RULING
1. The application dated 23rd May, 2017 seeks orders that this honourable court be pleased to dismiss the Plaintiff’s suit against the Defendant for want of prosecution.
2. It is stated in the grounds and the affidavit in support of the application that no steps have been taken to prosecute this case. That the inordinate delay is prejudicial to the Applicant. It is further averred that the delay reflects the Respondent’s lack of interest in the suit.
3. In opposition to the application, the Respondent filed the grounds of opposition dated 23rd October, 2017. It is stated that the application is unconstitutional and violates the overriding objectives of Sections 1A & 1B of the Civil Procedure Act to determine matters with finality and not through interlocutory applications. The court was referred to the history of the case and the triable issues raised in the suit. An affidavit filed supports the grounds raised and blames the delay on the appointment of the Respondent’s counsel as a judge.
4. I have considered the application and the reply to the same.
5. A perusal of the court record reveals that the suit herein was last fixed for hearing on 10th July, 2014. The file had therefore been dormant for about three years prior to the filing of the application at hand. This connotes lack of diligence on the Applicant’s side. Appointment of another counsel to take over the conduct of the Respondent’s case would not have taken that long. The same Civil Procedure Act that the Respondent places reliance on provides for expeditious resolution of disputes. Be as it may, this court is inclined to give the case a chance to be heard on merits.
6. In the upshot, the application is dismissed with costs to the Applicant. The Plaintiff to fix the suit for hearing within 120 days from the date hereof. In default the suit to stand dismissed.
Date, signed and delivered at Nairobi this 16th day of Oct., 2018
B. THURANIRA JADEN
JUDGE