[2018] KEHC 6625 (KLR)
The court found that the applicant had made genuine and diligent efforts to prosecute the suit within the time ordered, but was prevented from doing so by factors outside their control, such as the case being repeatedly taken out of the cause list. The applicant satisfactorily explained the delay, and the respondent...
Source-derived case information.
- Citation
- [2018] KEHC 6625 (KLR)
- Parties
- Plaintiff: Real Insurance Company Limited; Defendant: Ngumbi Munyasya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 63 of 2011
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit reinstated subject to prosecution within 120 days.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Court Discretion, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Real Insurance Company Limited
Plaintiff
Ngumbi Munyasya
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the order dismissing the suit for want of prosecution should be set aside.
- 2 Whether the plaintiff has provided a satisfactory explanation for the delay in prosecuting the suit.
- 3 Whether the defendant will suffer prejudice if the suit is reinstated.
Ratio Decidendi
The court found that the applicant had made genuine and diligent efforts to prosecute the suit within the time ordered, but was prevented from doing so by factors outside their control, such as the case being repeatedly taken out of the cause list. The applicant satisfactorily explained the delay, and the respondent did not oppose the application or demonstrate any prejudice that would result from reinstatement. The court exercised its discretion to set aside the dismissal order and reinstate the suit, subject to the condition that the suit be prosecuted within 120 days from the date of the ruling, failing which it would stand dismissed.
Court Disposition
Application allowed; suit reinstated subject to prosecution within 120 days.
Orders
- The order made on 10th March, 2017 dismissing the suit is set aside.
- The suit is reinstated for hearing and determination on merit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL CASE NO. 63 OF 2011
REAL INSURANCE COMPANY LIMITED....PLAINTIFFF/APPLICANT
VERSUS
NGUMBI MUNYASYA...................................DEFENDANT/RESPONDENT
RULING
1. On 3rd March, 2017, this Court served the Parties’ Advocates with a Notice to show cause why the suit should not be dismissed for want of prosecution. The Notice was heard on 10th March, 2017 whereupon the Plaintiff/Applicant explained the delay and the Court ordered that the matter be prosecuted within 90 days from the date thereof. The Applicant was not able to comply with the aforesaid orders and when the matter came up before this Court on 23rd October, 2017, the Court directed that a formal application be made as the suit stood dismissed when the 90 days lapsed. The Plaintiff therefore filed the instant Notice of Motion dated 13th December, 2017 under the provisions of Order 51 Rules 1, 3 and 4, Order 12 Rule 7 and Order 17 Rule 2 of the Civil Procedure Rules (2010) and Sections 3A and 63E of the Civil Procedure Act seeking orders;
(a) THAT this Honourable Court be pleased to set aside the order made on 10th March, 2017 dismissing this suit, and all other consequential orders thereto.
(b) THAT the Honourable Court be pleased to reinstate this suit to hearing and determination on merit.
(c) THAT costs of this application be provided for.
2. The application is supported by the Affidavit of the Applicant’s Counsel, JENIPHER CATHERINE OMBONYA sworn on 13th December 2017. She depones that after the court issued directions on 10th March, 2017 she requested for a hearing date and the matter was fixed for hearing on 30th May, 2017 on which date the case was listed as one of the matters taken out as the judges were attending urgent electoral disputes. She therefore fixed a mention date for 14th June, 2017 but again the case was taken out of the list. On the same date 14th June, 2017, the Applicant’s Advocates fixed the case for hearing on 26th June, 2017 but the matter was again taken out of the cause list. She depones that on 28th July, 2017 she wrote to the Deputy Registrar requesting for another date and was given the 23rd October, 2017 on which date the court directed the Applicant to make a formal application. She therefore prays that the application be allowed as they did their best to fix the matter for hearing within the 90 days but the delay was out of their control.
3. The Defendant/Respondent did not file a response to the application.
4. From the Supporting Affidavit, is it evident that the Applicant did their best to set down the matter for hearing only that the case was being taken out on all the dates fixed. The applicant, in my view has satisfactorily explained why the matter could not be prosecuted within the 90 days as ordered by this court. Despite having been served with the application, the Respondent did not file a response and I find that the Defendant will not suffer any prejudice if the orders are granted.
5. Notwithstanding the foregoing, there is also the need to expedite this matter and have the same prosecuted expeditiously. I order that the suit be prosecuted within the next 120 days from the date of this ruling failure to which it shall stand dismissed. The orders made on 10th March, 2017 dismissing this suit are therefore set aside and the suit is reinstated.
6. Costs of the application shall be in the cause.
Dated, Signed and Delivered at Nairobi this 10th Day of May, 2018.
........................
L. NJUGUNA
JUDGE
In the Presence of
…………………….......For the Applicant
……………………….. For the Respondent