[2018] KEHC 6835 (KLR)
The court found that although the plaintiff's former advocates failed to take necessary steps after the defendant's non-compliance with pre-trial requirements, the plaintiff himself had been vigilant in following up on the progress of his case. The court recognized that as a layman, the plaintiff may not have been...
Source-derived case information.
- Citation
- [2018] KEHC 6835 (KLR)
- Parties
- Plaintiff: Samuel Aunga Angwenyi; Defendant: Barclays Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 16 of 2010
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff granted 120 days to prosecute the case.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order 17 Rule 2, Pre Trial Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Aunga Angwenyi
Plaintiff
Barclays Bank of Kenya Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules, 2010.
- 2 Whether the plaintiff has shown sufficient cause for the delay in prosecuting the suit.
Ratio Decidendi
The court found that although the plaintiff's former advocates failed to take necessary steps after the defendant's non-compliance with pre-trial requirements, the plaintiff himself had been vigilant in following up on the progress of his case. The court recognized that as a layman, the plaintiff may not have been aware of the procedural steps required when the opposing party fails to comply. In the interest of substantive justice, and given the plaintiff's demonstrated diligence, the court exercised its discretion not to dismiss the suit. Instead, the court ordered that the matter be prosecuted within 120 days, failing which it would stand dismissed. The court also noted the need for...
Court Disposition
Suit not dismissed; plaintiff granted 120 days to prosecute the case.
Orders
- The suit shall be prosecuted within the next 120 days from the date of this ruling, failing which it shall stand dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL SUIT NO. 16 OF 2010
SAMUEL AUNGA ANGWENYI ................................... PLAINTIFF
VERSUS
BARCLAYS BANK OF KENYA LTD ....................... DEFENDANT
RULING
On 9th February, 2018, the Court served the Plaintiff’s and Defendant’s Advocates with a Notice to Show Cause why the suit should not be dismissed for want of prosecution. The suit was listed for dismissal on 16th February, 2018 and the Plaintiff filed a Replying Affidavit dated 8th March, 2018 in which he attributed the delay to his former Advocates who kept telling him that they were awaiting for the defendant to file their lists of witnesses, witness statements and documents before they could fix the matter for hearing. He depones that he has been steadfast in his pursuit for justice and that the delay in hearing the matter was due to the indolence on the part of the former advocates. He therefore urged the court to give him an opportunity to have his day in court.
The defendant did not file a response to the plaintiff’s affidavit.
I have considered the affidavit of the Plaintiff and I have also perused the court record. The last time when the matter was in court was on 19th March, 2015, the court directed the parties to comply with all pre-trial requirements and take a date before the Deputy Registrar to confirm compliance. From the record, the Plaintiff complied but the defendant has not done so todate. Nonetheless, if a defendant fails to comply this does not mean that the Plaintiff should wait in eternity without taking action in the matter. It would have been prudent for the Plaintiff to take further directions from the court in those circumstances. Under order 17 rule (2) of the Civil Procedure Rules the court is empowered to dismiss a suit which has stalled for a period of one year.
Order 17 Rule 2 of the Civil Procedure Rules, 2010 Provides that
“(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.”
I have considered the Plaintiff’s explanation. Being a layman, the plaintiff may not have been conversant with steps to be taken when the other party has not filed the necessary documents. The Plaintiff has been vigilant on his part in that he had been visiting the Advocates office to check on the progress of the case. In the interest of substantive justice, it would be just and fair to grant him a chance to prosecute the case.
Since this is a long outstanding matter having been filed in the year 2010, there is a need to have the same prosecuted expeditiously and I order that the same be prosecuted within the next 120 days from the date of this ruling failure to which it shall stand dismissed.
There shall be no orders as to costs.
Dated, Signed and Delivered at Nairobi this 15th Day of March, 2018.
…………………………….
L. NJUGUNA
JUDGE
In the Presence of
…………………………. For the Applicant
…………………………. For the Respondent