[2017] KEHC 6738 (KLR)
The court found that although there was a long period of delay in prosecuting the suit, the plaintiffs had provided a reasonable explanation by demonstrating that the delay was caused by the inaction of their former advocates. The plaintiffs had since withdrawn instructions from the offending firm, and there was no...
Source-derived case information.
- Citation
- [2017] KEHC 6738 (KLR)
- Parties
- Plaintiff: Paul Kamau Mbugua; Plaintiff: Samuel Wahinya Waweru; Defendant: Payless Care Hire & Tours Limited; Defendant: Pius Ojunga Were
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 458 of 2010
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed.
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Advocate Negligence, Client Vs Advocate Mistake
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kamau Mbugua
Plaintiff
Samuel Wahinya Waweru
Plaintiff
Payless Care Hire & Tours Limited
Defendant
Pius Ojunga Were
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate and inexcusable delay by the plaintiffs.
- 2 Whether the mistakes of the plaintiffs' advocates should be visited upon the plaintiffs.
Ratio Decidendi
The court found that although there was a long period of delay in prosecuting the suit, the plaintiffs had provided a reasonable explanation by demonstrating that the delay was caused by the inaction of their former advocates. The plaintiffs had since withdrawn instructions from the offending firm, and there was no evidence of collusion or connivance between the plaintiffs and their advocates. Therefore, the court declined to dismiss the suit for want of prosecution, holding that the mistakes of advocates should not be visited upon innocent clients in the absence of collusion. The defendants were awarded thrown away costs for the motion.
Court Disposition
Application for dismissal for want of prosecution dismissed.
Orders
- The motion to dismiss the suit for want of prosecution is dismissed.
- The defendants are awarded thrown away costs of the motion assessed at KES 10,000.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 458 OF 2010
PAUL KAMAU MBUGUA...................................................... 1ST PLAINTIFF
SAMUEL WAHINYA WAWERU ........................................... 2ND PLAINTIFF
-V E R S U S –
PAYLESS CARE HIRE & TOURS LIMITED ....................1ST DEFENDANT
PIUS OJUNGA WERE ......................................................2ND DEFENDANT
RULING
1. The defendants herein took out the motion dated 23rd July 2015, in which they sought for the plaintiffs’ suit to be dismissed for want of prosecution. The motion is supported by the affidavit of Alake Lugonzo. When served, the plaintiffs filed the affidavit of Paul Kamau Mbugua to oppose the motion. The motion was disposed of by oral submissions.
2. I have considered the grounds stated on the face of the motion plus the facts deponed in the affidavits filed in support and against the application. I have also considered the rival oral submissions. It is the submission of the defendants that the plaintiffs have lost interest in pursuing this case since they have not taken any steps to fix the matter for hearing since the date of filing suit on 8/10/2010. The defendants further stated that the delay is so inordinate and inexcusable making it impossible for the defendants to raise witnesses.
3) In a lengthy affidavit, the plaintiffs beseeched this court not to dismiss the suit for want of prosecution. The plaintiffs blamed the firm of M/s Njoroge Wachira & Co. Advocates for failing to take steps to expedite the hearing of the suit. The plaintiffs said they were prompted to withdraw instructions from aforesaid firm of advocates when they realised their folly. The plaintiffs beseeched this court not to visit the mistakes of their advocates on them.
4) The main reason advanced by the plaintiffs in seeking the indulgence of this court to spare the suit from dismissal is that they were let down by their erstwhile advocates. This court appreciates the fact that at times parties are let down by advocates who do not take seriously their professional duties in representing their clients. In such cases the court will have to examine the conduct of the clients to discover whether or not there was collusion or connivance. Where there is no evidence of collusion between the clients and the advocates, then the court will not visit the mistakes of the advocate on the client. In the matter before this court, the plaintiffs were able to show this court that there was a long period of delay occasioned by the inaction of their advocates. They have subsequently withdrawn instructions from the offending firm of advocates. In the circumstances, I decline to dismiss the suit by dismissing the motion. The defendants are given thrown away costs of the motion assessed at kshs.10,000/=.
Dated, Signed and Delivered in open court this 10th day of March, 2017.
J. K. SERGON
JUDGE
In the presence of:
......................................... for the Plaintiff
.......................................... for the Defendant