[2021] KEHC 4828 (KLR)
The court found that although there had been a delay of about two years after the suit was certified ready for hearing, the Plaintiff had demonstrated continued interest in prosecuting the matter and provided a reasonable explanation for the delay, namely the mix up of files during the Advocate's office relocation...
Source-derived case information.
- Citation
- [2021] KEHC 4828 (KLR)
- Parties
- Applicant: Dr. Peter Kamau Njoroge; Respondent: Caroline Waguthi Ndindi; Respondent: Anthony Thomas Ngokonyo; Respondent: Charwins Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 505 of 2012
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Application to dismiss suit for want of prosecution declined, subject to conditions.
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Explanation for Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Peter Kamau Njoroge
Applicant
Caroline Waguthi Ndindi
Respondent
Anthony Thomas Ngokonyo
Respondent
Charwins Limited
Respondent
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay by the Plaintiff.
- 2 Whether the explanation for the delay provided by the Plaintiff is sufficient to prevent dismissal of the suit.
Ratio Decidendi
The court found that although there had been a delay of about two years after the suit was certified ready for hearing, the Plaintiff had demonstrated continued interest in prosecuting the matter and provided a reasonable explanation for the delay, namely the mix up of files during the Advocate's office relocation and renovation. The court accepted this explanation and determined that it would not be just to penalize the Plaintiff for the mistakes of his counsel. Therefore, the application to dismiss the suit for want of prosecution was declined, but the Plaintiff was directed to fix the case for hearing within 90 days, failing which the suit would stand dismissed with costs to the...
Court Disposition
Application to dismiss suit for want of prosecution declined, subject to conditions.
Orders
- The Plaintiff must fix the case for hearing within 90 days from the date of the ruling.
- In default, the suit shall stand dismissed with costs to the Defendants.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 505 OF 2012
DR. PETER KAMAU NJOROGE...............................................PLAINTIFF/APPLICANT
VERSUS
CAROLINE WAGUTHI NDINDI.................................1ST DEFENDANT/RESPONDENT
ANTHONY THOMAS NGOKONYO.........................2ND DEFENDANT/RESPONDENT
CHARWINS LIMITED.................................................3RD DEFENDANT/RESPONDENT
RULING
1. On 2/6/2020, this case came up for the hearing of the Notice to Show Cause why it should not be dismissed for want of prosecution.
2. The affidavit filed by the Plaintiff’s counsel showing cause why the suit should not be dismissed blames the delay herein on the mix up of files during relocation and renovation of the Advocate’s office. The Plaintiff also filed an affidavit in which he stated that he had been following up on the progress of his case and was aware of the mix up of the files. He expressed keen interest in the suit.
3. The Defendants filed an affidavit in support of the dismissal. Referring to the background facts of the case, the Defendants stated the Plaintiff has since vacated the suit premises and has lost interest in the matter, hence the delay. That the delay of eight years in the prosecution of this case is inexcusable, an abuse of the process of the court and prejudicial to the Defendants.
4. I have perused the court record. The case remained active in court during the hearing of the Interlocutory application. The suit was certified ready to proceed to hearing on 11/10/2018. By the time the Notice to Show Cause was served, the suit had stalled for about two years.
5. The Plaintiff has however shown interest in prosecuting the suit. This court accepts the explanation for the delay and is not inclined to visit the mistakes of the Advocate on the Litigant. Consequently, I allow the application on condition that the case is fixed for hearing within 90 days from the date hereof. In default the cause to stand dismissed with costs to the Defendants.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JULY, 2021
B.THURANIRA JADEN
JUDGE