[2014] KEHC 1915 (KLR)
The court found that although there was delay in prosecuting the suit, the plaintiff had provided an explanation that the court file was missing for some time and expressed continued interest in pursuing the case. The court exercised its discretion not to dismiss the suit for want of prosecution at this stage....
Source-derived case information.
- Citation
- [2014] KEHC 1915 (KLR)
- Parties
- Plaintiff: Rukia Raphael Toya; Defendant: Stephen Wangura; Defendant: Kalolo/Kibaoni/Baya Magonzi Upgrading Project Committee; Defendant: Anderson Peru
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 325 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- Application to dismiss suit for want of prosecution dismissed. Suit transferred to Chief Magistrate's Court, Mombasa.
- Judges
- SN Mukunya
- Legal Topics
- Dismissal for Want of Prosecution, Case Management Orders, Transfer of Suit, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rukia Raphael Toya
Plaintiff
Stephen Wangura
Defendant
Kalolo/Kibaoni/Baya Magonzi Upgrading Project Committee
Defendant
Anderson Peru
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the plaintiff has shown sufficient cause for delay in prosecuting the suit.
- 3 Whether the suit should be transferred to the Chief Magistrate's Court.
Ratio Decidendi
The court found that although there was delay in prosecuting the suit, the plaintiff had provided an explanation that the court file was missing for some time and expressed continued interest in pursuing the case. The court exercised its discretion not to dismiss the suit for want of prosecution at this stage. Instead, the court ordered the transfer of the suit to the Chief Magistrate's Court, Mombasa, for hearing and final disposal, with a strict timeline for the plaintiff to fix the matter for hearing. Failure to comply with this timeline would result in automatic dismissal with costs to the defendant.
Court Disposition
Application to dismiss suit for want of prosecution dismissed. Suit transferred to Chief Magistrate's Court, Mombasa.
Orders
- The application to dismiss the suit for want of prosecution is dismissed with no order as to costs.
- The suit is transferred to the Chief Magistrate's Court, Mombasa, for hearing and final disposal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 325 OF 2010
RUKIA RAPHAEL TOYA.............................................................PLAINTIFF
- VERSUS -
STEPHEN WANGURA ..................................................1ST DEFENDANT
KALOLO/KIBAONI/BAYA MAGONZI UPGRADING
PROJECT COMMITTEE............................................. 2ND DEFENDANT
ANDERSON PERU ..................................................... 3RD DEFENDANT
RULING
[1] The applicant brings this application to dismiss the plaintiff's suit for want of prosecution. He avers that the parties herein were ordered to exchange witness statements and documents within 45 days and the suit was set for hearing on 6th November 2012. That on that day the plaintiff and his advocate did not appear and the suit was stood over generally.
At the time of filing the suit on 11th March 2014 the plaintiff had not complied with the court order at all. The Plaintiff in reply annexed various letters to show that for sometime the court file was missing and stated that he is still interested in pursuing his case. He argued that dismissing the suit was draconian.
[2] Having heard the parties herein, I order that this application is dismissed with no order as to costs. The suit will be transferred to the Chief Magistrate's Court Mombasa for hearing and final disposal. The plaintiff must fix it down for hearing in that court within 45 days failing which this matter then shall stand dismissed with costs to the defendant.
Dated and delivered at Mombasa in open court this 30th day of October, 2014.
S. MUKUNYA
JUDGE
30. 10. 2014
In the presence of;
Mr. Nyange for Dr. Khaminwa Advocate for plaintiff/respondent
Mr. Lewa Advocate for he 1st defendant/applicant