[2008] KEHC 2626 (KLR)
The court found that there was no admissible evidence of any negotiations to settle the matter out of court between the parties' advocates. The respondent's reliance on hearsay evidence and an alleged offer by the applicant, without any response or substantiation, was deemed insufficient to explain the delay. Even...
Source-derived case information.
- Citation
- [2008] KEHC 2626 (KLR)
- Parties
- Plaintiff: Rajesh Jamnadass; Defendant: Tobias Odhiambo Oketch
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 901 of 2004
- Procedural Posture
- Notice of Motion / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application granted; suit dismissed for want of prosecution with costs to the applicant.
- Judges
- JM Khamoni
- Legal Topics
- Dismissal for Want of Prosecution, Inordinate Delay, Order Xvi Rule 5a, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rajesh Jamnadass
Plaintiff
Tobias Odhiambo Oketch
Defendant
Procedural Posture
Notice of Motion / 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 delay.
- 2 Whether there was any admissible evidence of negotiations to settle the suit out of court.
- 3 Whether the respondent provided sufficient explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that there was no admissible evidence of any negotiations to settle the matter out of court between the parties' advocates. The respondent's reliance on hearsay evidence and an alleged offer by the applicant, without any response or substantiation, was deemed insufficient to explain the delay. Even accepting the respondent's assertion that the delay was two years rather than four, the court held that no sufficient explanation had been provided to avoid the sanction under Order XVI Rule 5(a) of the Civil Procedure Rules. Consequently, the court exercised its discretion to dismiss the suit for want of prosecution, granting the application with costs to the applicant.
Court Disposition
Application granted; suit dismissed for want of prosecution with costs to the applicant.
Orders
- The plaintiff's suit is dismissed for want of prosecution.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
12 paragraphs
RAJESH JAMNADASS……………………….PLAINTIFF/RESPONDENT
-VS-
TOBIAS ODHIAMBO OKETCH……………….DEFENDANT/APPLICANT
RULING
Upon considering carefully what has been brought to my attention during the hearing of this Notice of Motion dated 4th May 2007 wherein the Applicant is praying that the Plaintiff’s suit herein be dismissed with costs for want of prosecution there having been inordinate delay for four years which the Respondent says should be reduced to two years, the said Notice of Motion is hereby granted with costs to the Applicant for the following reasons.
Firstly, there is no evidence that the Advocate for the Plaintiff and the Advocate for the Defendant have ever been involved in negotiation to settle this suit out of Court.
Secondly and following from the above, the evidence relied upon by the Respondent herein to claim there was an attempt to settle this case out of Court is hearsay and inadmissible before me.
Thirdly, since the Respondent relies entirely upon an alleged offer by the Applicant without indicating any response to that offer, the Respondent relies on a lame excuse .
The delay to prosecute the suit may not be four years as alleged by the Applicant but even if it is accepted that the delay is two years, the Respondent has not given sufficient explanation to make him escape the legal sanction in Order XVI Rule 5(a) of the Civil Procedure Rules.
Dated and Delivered at Nairobi this 21st day of February, 2008.
J.M. KHAMONI
JUDGE