[2021] KEHC 12980 (KLR)
The court found that the delay in prosecuting the suit was attributable to the COVID-19 pandemic and the resulting temporary closure of courts, which prevented the case from being listed for hearing on the scheduled date. The court recognized that the pandemic created unprecedented challenges for the administration...
Source-derived case information.
- Citation
- [2021] KEHC 12980 (KLR)
- Parties
- Plaintiff: Dr. Selina Vukinu Ambe; Defendant: Isaac Odhiambo Ooko
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 169 of 2018
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Covid 19 Impact on Proceedings, Judicial Discretion, Pre Trial Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Selina Vukinu Ambe
Plaintiff
Isaac Odhiambo Ooko
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 17 rule 2 (3) of the Civil Procedure Rules.
- 2 Whether the COVID-19 pandemic and related court closures constitute sufficient cause for delay in prosecution.
Ratio Decidendi
The court found that the delay in prosecuting the suit was attributable to the COVID-19 pandemic and the resulting temporary closure of courts, which prevented the case from being listed for hearing on the scheduled date. The court recognized that the pandemic created unprecedented challenges for the administration of justice and that the parties had complied with pre-trial directions. As such, the court held that the case was not ripe for dismissal for want of prosecution at the time the application was filed, and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 28th September, 2020 is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 169 OF 2018
DR. SELINA VUKINU AMBE....................PLAINTIFF/RESPONDENT
VERSUS
ISAAC ODHIAMBO OOKO......................DEFENDANT/APPLICANT
RULING
1. The application dated 28th September, 2020 seeks order that this suit be dismissed for want of prosecution.
2. It is stated in the affidavit in support of the application that this suit was instituted about two years ago. That the last time the suit was listed for hearing was on 30th September, 2020. It is added that it is apparent that the Plaintiff has lost interest in the suit.
3. The application is opposed. It is stated in the replying affidavit that the Plaintiff has complied with the pre-trial directions and the case has been certified ready to proceed. That no hearings have been taking place since the outbreak of the COVID 19 Pandemic.
4. The Applicant filed a supplementary affidavit and averred that the COVID 19 Pandemic is not an excuse for the failure to prosecute this case as there are adequate measures taken by the court to reschedule hearing dates.
5. The Respondent filed a rejoinder and stated that their side has followed the directions given by the court following the outbreak of the COVID 19 Pandemic.
6. I have considered the application, the response and the submissions filed by the respective counsel for the parties.
7. Order 17 rule 2 (3) provides as follows:
“2. (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
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1. ”
8. This court takes judicial notice of the outbreak of the COVID 19 Pandemic and the unprecedented challenges it has visited on the administration of justice. This court is also aware of the directions that have been issued by the judiciary regarding the administration of justice during the pandemic. This court is also aware of the directions issued specifically by the Presiding Judge of the Civil Division from time to time on the fixing of hearing dates in respect of witnesses and physical hearings. The instant case has no directions for hearing during the pandemic.
9. In addition to the above, this case was last in court on 30th September, 2019 and on 18th October, 2019 was given a date in the registry for hearing on 15th April, 2020. The case was not listed for hearing on 15th April 2020 as by then the courts had been temporarily closed following the outbreak of the COVID 19 Pandemic. This case was therefore not ripe for dismissal as at the time of the filing of the application at hand on 30th September, 2020.
10. With the foregoing, the application is dismissed with costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JUNE, 2021
B.THURANIRA JADEN
JUDGE