[2020] KEHC 8708 (KLR)
The court found that the plaintiff failed to provide a viable or credible explanation for the delay in prosecuting the suit after the last court appearance on 22nd May, 2018. The plaintiff's claim of ongoing negotiations was unsupported by evidence, and the record showed that settlement efforts had ceased by the...
Source-derived case information.
- Citation
- [2020] KEHC 8708 (KLR)
- Parties
- Plaintiff: Safaricom Limited; Defendant: Porting Access Kenya Limited; Defendant: Patrick Mweu Musimba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 167 of 2011
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff granted 120 days to prosecute, failing which suit stands dismissed.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Substantive Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safaricom Limited
Plaintiff
Porting Access Kenya Limited
Defendant
Patrick Mweu Musimba
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay by the plaintiff.
- 2 Whether the plaintiff has provided a satisfactory explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the plaintiff failed to provide a viable or credible explanation for the delay in prosecuting the suit after the last court appearance on 22nd May, 2018. The plaintiff's claim of ongoing negotiations was unsupported by evidence, and the record showed that settlement efforts had ceased by the last court date. Despite the lack of diligence by the plaintiff, the court, in the interest of substantive justice, declined to dismiss the suit outright. Instead, the court ordered that the suit must be prosecuted within 120 days from the date of the ruling, failing which it would stand dismissed. This approach balanced the need for expeditious disposal of cases with the...
Court Disposition
Suit not dismissed; plaintiff granted 120 days to prosecute, failing which suit stands dismissed.
Orders
- The suit shall be prosecuted within 120 days from the date of this ruling, failing which it shall stand dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 167 OF 2011
SAFARICOM LIMITED.......................................................PLAINTIFF
-VERSUS-
PORTING ACCESS KENYA LIMITED..................1ST DEFENDANT
PATRICK MWEU MUSIMBA.................................2ND DEFENDANT
RULING
1. This ruling derives from the notice to show cause issued on 19th September, 2019 requiring the parties to show cause as to why the suit should not be dismissed for want of prosecution since it was last in court on 22nd May, 2018.
2. The plaintiff put in the affidavit sworn by its Legal Counsel-Litigation, Daniel Ndaba, in response thereto.
3. The deponent explained that the reason behind the delay in prosecuting the suit since it was last before court is that there were ongoing negotiations amongst the parties with a view to settling the matter and which negotiations fell through, hence the plaintiff is now desirous of having the suit heard on merit.
4. The deponent therefore urged this court to exercise lenience in allowing the plaintiff to prosecute its case.
5. I have considered the explanation offered by the plaintiff.
6. The record confirms that the parties had previously been engaging in out-of-court negotiations. According to the record, when the matter was last in court on 22nd May, 2018 Mr. Havi, learned counsel for the plaintiff disclosed to the court that the parties were unable to reach a settlement and that the plaintiff wished to have the suit proceed for hearing. Finally, the court directed the parties to take a hearing date from the registry.
7. It is therefore clear from the foregoing that the plaintiff’s present account holds no water and in any event, the plaintiff has not tendered any evidence to show that since 22nd May, 2018 the parties continued in their attempts to arrive at a settlement.
8. I am not convinced that the plaintiff has given any viable explanation for its failure to set the suit down for hearing as earlier directed by the court, especially given the age of the suit.
To my mind, the plaintiff has shown no seriousness in prosecuting its case.
9. However, in the interest of substantive justice, I will not dismiss the suit but I hereby direct that it be prosecuted within 120 days from today failing which it shall stand dismissed.
It is so ordered.
Dated, signed and delivered at NAIROBI this 6th day of February, 2020.
.......................
L. NJUGUNA
JUDGE
In the presence of:
................................for the Plaintiff
................................for the 1st and 2nd Defendants