[2007] KEHC 1746 (KLR)
The court found that the delay in prosecuting the suit was adequately explained by the ongoing fee dispute between the respondent and their previous advocates, which resulted in the file being withheld. The court held that this explanation rendered the delay excusable under the circumstances. Furthermore, there was...
Source-derived case information.
- Citation
- [2007] KEHC 1746 (KLR)
- Parties
- Plaintiff: Pelican Engineering & Construction Company Limited; Respondent: Nation Newspapers Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 403 of 1996
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal for want of prosecution dismissed
- Judges
- CM Kariuki
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Excusable Delay, Prejudice to Defendant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pelican Engineering & Construction Company Limited
Plaintiff
Nation Newspapers Limited
Respondent
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the delay in prosecuting the suit is inexcusable and warrants dismissal for want of prosecution.
- 2 Whether the delay has caused prejudice to the defendant/applicant.
Ratio Decidendi
The court found that the delay in prosecuting the suit was adequately explained by the ongoing fee dispute between the respondent and their previous advocates, which resulted in the file being withheld. The court held that this explanation rendered the delay excusable under the circumstances. Furthermore, there was no evidence that the delay had prejudiced the defendant or would prevent a fair trial. Therefore, the application for dismissal for want of prosecution was dismissed, but the plaintiff/respondent was ordered to fix a hearing date within 30 days.
Court Disposition
application for dismissal for want of prosecution dismissed
Orders
- The application for dismissal for want of prosecution is dismissed.
- The plaintiff/respondent must fix a hearing date of the suit within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 403 OF 1996
PELICAN ENGINEERING & CONSTRUCTION COMPANY LIMITED ……. PLAINTIFF
VERSUS
NATION NEWSPAPERS LIMITED…..……......................................……... RESPONDENT
R U L I N G
The Notice of Motion dated 9/9/05 seeks dismissal of the suit herein; then costs.
Supported by Kiragu Kimani’s Affidavit, the application is on the grounds that since 3/12/03, when the Respondents Chamber Summons dated 1/3/00 was adjourned generally, no steps have been taken to prosecute the suit.
In opposition, the Respondent avers that the delay was caused by the withholding of the file by the previous counsel due to disputes over the fees over this matter and other matters, which dispute ended in HCCC No. 1574/01, hence the delay was neither intentional, nor negligent; that the Respondent instructed another firm of lawyers who came on record on 5/4/06; the Respondent should not be victimized for the mistakes of the counsel; that the new firm has tried to fix a hearing date of the suit but no date could be allocated due to the pendency of this application for dismissal. The dispute …..HCCC 1574/01 has not been finalized as yet.
Having carefully perused the pleadings herein, and considered the submissions by counsel for both sides, I have arrived at the following findings and conclusions.
In an application for dismissal of a suit for want of prosecution, it is not simply the longevity of the period within which the suit has not been prosecuted. The delay must be unexplained or inexcusable [see AGIP (K) LTD VS. HIGHLANDS TYRES LTD. HCCC No. 249 of 1997, [2001], KLR, 630 at p.635] and the delay must be prejudicial to the Defendant/Applicant, and thus to the interests of justice.
In the present application, the withholding of the file by the Respondent’s previous Advocates over disputed fees for the suit herein and other legal matters, affords a good explanation for the delay. From the pleadings before me, that dispute, in HCCC 1574/0,1 is yet to be finalized. I therefore hold that the delay is explained and excusable under the circumstances of this case.
Further, there is no evidence that despite the delay, the Applicant/Defendant cannot get a fair and just trial of the suit or that any prejudice to the Defendant has been occasioned by the delay. Whereas it is the duty of the Plaintiff/Respondent, and his Advocate,]to prosecute the suit with speed and diligence. See BERNARD OCHOLA NGANI & OTHERS VS. MATHAYO NDO & 2 OTHERS, HCCC NO. 270/2001, where that duty cannot be speedily discharged due to factors beyond the control of the Plaintiff, this court will exercise its inherent power of dismissal and discrimination in favour of the Respondent/Plaintiff. The existence of the suit between the Plaintiff/Respondent and his previous Advocates over the issue of disputed legal fees is sufficient explanation of the delay in prosecuting the suit herein.
Accordingly, and for the foregoing reasons, I dismiss the application for dismissal for want of prosecution, BUT do order that the Plaintiff/Respondent must fix a hearing date of the suit herein, within the next 30 days from today’s date.
I make no order as to costs, given the circumstances that led to the application herein.
DATED and delivered in Nairobi, this 20th Day of February, 2007.
O.K. MUTUNGI
JUDGE