[2008] KEHC 2216 (KLR)
The court found that although the plaintiffs did not provide proof that they attempted to retrieve the file from the registry, their annexed application for amendment indicated an intention to proceed with the suit. The court exercised its discretion to give the plaintiffs the benefit of the doubt, declining to...
Source-derived case information.
- Citation
- [2008] KEHC 2216 (KLR)
- Parties
- Plaintiff: Peter Mwai Migwi & Others; Defendant: Paul Mwai Kabiru & Others
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 228 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal for want of prosecution dismissed; costs awarded to defendants
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mwai Migwi & Others
Plaintiff
Paul Mwai Kabiru & Others
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 the plaintiffs' delay in taking steps to prosecute the case.
- 2 Whether the plaintiffs had a valid explanation for the delay, specifically regarding the alleged missing court file and intention to amend the plaint.
Ratio Decidendi
The court found that although the plaintiffs did not provide proof that they attempted to retrieve the file from the registry, their annexed application for amendment indicated an intention to proceed with the suit. The court exercised its discretion to give the plaintiffs the benefit of the doubt, declining to dismiss the suit for want of prosecution. The application for dismissal was therefore dismissed, but costs were awarded to the defendants.
Court Disposition
application for dismissal for want of prosecution dismissed; costs awarded to defendants
Orders
- The Notice of Motion dated 7th April 2008 is dismissed.
- Costs of the application are awarded to the defendants.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Civil Case 228 of 2001
PETER MWAI MIGWI & OTHERS ….....………….. PLAINTIFF
versus
PAUL MWAI KABIRU & OTHERS…………….. DEFENDANT
RULING
The second, fourth and fifth defendants have moved the court under Notice of Motion dated 7th April 2008 seeking for the dismissal of this suit against them for want of prosecution. The applicants state that this matter was last in court on 10th May 2007 when the same was stood over generally. That the plaintiff had failed to proceed with the matter and that three months had expired since then. In opposition to that application the plaintiff stated that indeed the matter was before court on 10th May 2007. Thereafter the plaintiffs desired to amend the plaint that they were unable to file the application because the court file was said to have been missing. The plaintiffs to prove that they intended to amend the plaint annexed the application for amendment.
I have considered the arguments raised before me and although the plaintiffs did not prove that they had attempted to get the file at the registry I am of the view that this is a case where the plaintiffs should be given the benefit of their doubt. I therefore decline the prayers that are sought and the Notice of Motion dated 7th April 2008 is dismissed with costs being awarded to the defendant.
DATED AND DELIVERED THIS 21ST DAY OF JULY 2008
MARY KASANGO
JUDGE