[2007] KEHC 1288 (KLR)
Although there has been delay in fixing the case for hearing, the court found that the defendant, being a corporation, is capable of paying any damages that may be awarded, and the plaintiff's explanation for the delay, including the uncertainty caused by the defendant's insurer being under statutory management and...
Source-derived case information.
- Citation
- [2007] KEHC 1288 (KLR)
- Parties
- Plaintiff: Safari Mupe (a minor suing through his mother and next friend Harusi Mumba Muzungu); Defendant: Kenya Power & Lighting Co. Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 528 of 2000
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution disallowed; conditional order for plaintiff to fix hearing within six months; costs of application to defendant.
- Legal Topics
- Dismissal for Want of Prosecution, Adjournment of Hearing, Delay in Prosecution, Court Management, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safari Mupe (a minor suing through his mother and next friend Harusi Mumba Muzungu)
Plaintiff
Kenya Power & Lighting Co. Ltd
Defendant
Procedural Posture
Civil Case / Ruling on 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(d) of the Civil Procedure Rules.
- 2 Whether the plaintiff's explanation for delay in fixing the case for hearing is sufficient to avoid dismissal.
- 3 Whether the defendant is prejudiced by the delay.
Ratio Decidendi
Although there has been delay in fixing the case for hearing, the court found that the defendant, being a corporation, is capable of paying any damages that may be awarded, and the plaintiff's explanation for the delay, including the uncertainty caused by the defendant's insurer being under statutory management and the missing court file, was sufficient to give the plaintiff the benefit of the doubt. However, the court emphasized that the defendant's counsel did not respond to the plaintiff's correspondence regarding instructions, which contributed to the delay. The application for dismissal was therefore disallowed, but the plaintiff was ordered to fix the case for hearing within six...
Court Disposition
Application for dismissal for want of prosecution disallowed; conditional order for plaintiff to fix hearing within six months; costs of application to defendant.
Orders
- Plaintiff to fix the case for hearing within six months from the date of the ruling.
- If the plaintiff fails to fix the case for hearing within six months, the suit shall stand dismissed with costs for want of prosecution.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 528 of 2000
SAFARI MUPE (A minor suing thro’ his mother and next friend
HARUSI MUMBA MUZUNGU……...........................................................................………..PLAINTIFF
VERSUS
KENYA POWER & LIGHTING CO. LTD….............................…..…...DEFENDANT
RULING
The hearing of this case was admittedly last adjourned on the 17th November 2004. Since then, the defendant says, the plaintiff has not bothered to fix it for hearing. The Defendant has in the circumstances applied under Section 3A of the Civil Procedure Act and Order 16 Rule 5(d) of the Civil Procedure Rules for its dismissal for want of prosecution.
In response to the application the plaintiff claims in the replying affidavit sworn by his advocate that the failure to fix the hearing has been occasioned by inter alia the defendant’s insurers being placed under statutory management and a moratorium declared on all the claims. Annexed to that affidavit are copies of the letters written to the defendant’s advocates enquiring if they still have instructions to act in the matter in view of their clients’ insurers’ position. Counsel also claims that the court file has been missing and has also annexed copies of letters to court on the issue.
I have considered the matter. I know it as a fact that quite a number of cases against parties previously insured by United Insurance Company Limited have not been heard for the reason that it is not clear whether the claims covered by that insurance company will eventually be settled or not. Not many counsel would want to conduct a hearing of a case and obtain a decree they can never enforce. But that is no excuse in this case as the defendant is a corporation capable of paying any damages that may be awarded. The plaintiff and his advisers must be aware of that. However because counsel for the defendant did not respond to their counterpart’s letters and confirm that they still have instructions in the matter, I am prepared to give the plaintiff the benefit of doubt. I therefore disallow this application and order that the plaintiff do fix this case for hearing within six months failing which this suit shall stand dismissed with costs for want of prosecution. The Defendant shall have the costs of this application.
DATED and delivered this 22nd day of October 2007.
D. K. MARAGA
JUDGE