[2007] KEHC 2154 (KLR)
The court found that the plaintiff had not been inactive or negligent in prosecuting the suit. Despite the delay since the last hearing date, the plaintiff had made eight unsuccessful attempts to fix the case for hearing and had complied with discovery obligations, unlike the defendants. The court held that the...
Source-derived case information.
- Citation
- [2007] KEHC 2154 (KLR)
- Parties
- Plaintiff: Reliable Freight Services Ltd; Defendant: Mediterranean Shipping Co. S.A.; Defendant: Kenya Ports Authority
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 594 of 2000
- Procedural Posture
- Civil Appeal / Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Order 16 Rule 5, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reliable Freight Services Ltd
Plaintiff
Mediterranean Shipping Co. S.A.
Defendant
Kenya Ports Authority
Defendant
Procedural Posture
Civil Appeal / Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 16 Rule 5 of the Civil Procedure Rules.
- 2 Whether the plaintiff has taken reasonable steps to prosecute the suit.
Ratio Decidendi
The court found that the plaintiff had not been inactive or negligent in prosecuting the suit. Despite the delay since the last hearing date, the plaintiff had made eight unsuccessful attempts to fix the case for hearing and had complied with discovery obligations, unlike the defendants. The court held that the purpose of Order 16 Rule 5 is to address cases where plaintiffs have gone to sleep, which was not the situation here. Therefore, the application for dismissal for want of prosecution lacked merit and was dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs
Orders
- The application to dismiss the suit for want of prosecution is dismissed.
- The defendants shall pay the costs of this application.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Appeal 594 of 2000
RELIABLE FREIGHT SERVICES LTD……………….…….......…… PLAINTIFF
VERSUS
MEDITERRANEAN SHIPPING CO. S.A. ………………...……1ST DEFENDANT
KENYA PORTS AUTHORITY ………………………..……..…..2ND DEFENDANT
RULING
This is an application made under Order 16 Rule 5 of the Civil Procedure Rules seeking to dismiss this suit for want of prosecution. The defendants argue that since 9th June 2004 when this case last came up for hearing the plaintiff has not fixed it for hearing.
The purpose of Order 16 Rule 5 with regard to the dismissal of suits for want of prosecution is to take care of suits filed by plaintiffs who thereafter go to sleep. Having perused the replying affidavit and considered the submissions by counsel for the plaintiff, I am satisfied that the plaintiff in this case has not gone to sleep. Apart from making discovery, which the defendants have not done, he has since 9th June 2004 made eight unsuccessful attempts to fix the case for hearing.
In the circumstances this application has no merit and the same is hereby dismissed with costs.
DATED and delivered this 13th July 2007.
D.K. MARAGA
JUDGE