[2014] KEHC 8088 (KLR)
The court found that the Plaintiff had failed to take any positive or empirical steps to advance her case towards hearing for a period of 1½ years, despite being directed to comply with pre-trial requirements. The only explanation offered was to blame her former advocates, which the court held was insufficient, as...
Source-derived case information.
- Citation
- [2014] KEHC 8088 (KLR)
- Parties
- Plaintiff: Rose N Waigwa; Defendant: University of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 545 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Professional Negligence, Pre Trial Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose N Waigwa
Plaintiff
University of Nairobi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the Plaintiff's suit should be dismissed for want of prosecution due to prolonged inactivity.
- 2 Whether the Plaintiff's explanation blaming her former advocates is sufficient to excuse the delay.
Ratio Decidendi
The court found that the Plaintiff had failed to take any positive or empirical steps to advance her case towards hearing for a period of 1½ years, despite being directed to comply with pre-trial requirements. The only explanation offered was to blame her former advocates, which the court held was insufficient, as parties are expected to take an active role in prosecuting their cases and cannot simply shift responsibility to their advocates. The court emphasized that the Defendant should not continue to be prejudiced by the Plaintiff's inaction. Consequently, the court exercised its discretion to dismiss the suit for want of prosecution, with costs to the Defendant.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The Plaintiff’s suit is dismissed for want of prosecution.
- Costs awarded to the Defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISC APPLICATION NO 545 OF 2007
ROSE N WAIGWA…………………..…..……......................PLAINTIFF
VERSUS
UNIVERSITY OF NAIROBI………………..………….……..DEFENDANT
R U L I N G
1. This ruling concerns the Defendant’s application by notice of motion dated 3. 4.2013 for dismissal of the Plaintiff’s suit for want of prosecution. The Plaintiff has opposed the application.
2. I have read the supporting and replying affidavits. I have also perused the court record. Finally, I have considered the submissions of the learned counsels appearing. No authorities were cited.
3. It appears common ground that this suit was last before a judge on 26/10/2011. The judge directed the parties to comply with pre-trial requirements. The Defendant did so. The Plaintiff did not. By the date the present application was filed on 04. 04. 2013 the Plaintiff had not done anything, since 26. 10. 2011, to advance her suit towards hearing. That is a delay 1½ years.
4. The only explanation for the delay that the Plaintiff has offered is to blame her former advocates. There is also allusion to the effect that some other person had passed himself off, and unlawfully, as the Plaintiff’s advocate while knowing that he did not have an advocate’s practising certificate.
5. The days are long gone now when a party in default will simply rise and blame his advocate without more. There is always a cause of action in professional negligence due to a client who has been failed by his advocate. It is not right that the opposite party should always suffer due to the default of his opponent’s advocate.
6. In the present case the Plaintiff has not demonstrated any empirical and positive step she herself took to prod her advocates towards prosecution of the case. All she has done is to blame her former advocates. I find no reason why the suit should continue to hang over the head of the Defendant.
7. I will in the event allow the application. The Plaintiff’s suit is hereby dismissed with costs to the Defendant for want of prosecution. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 6th DAY OF JUNE 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 11TH DAY OF JUNE 2014