[2008] KEHC 2269 (KLR)
The court found that the plaintiff had taken a step in the proceedings by setting the suit down for hearing and serving the hearing notice on the defendants before the defendants filed their application for dismissal. This action by the plaintiff negated the basis for dismissal for want of prosecution. The court...
Source-derived case information.
- Citation
- [2008] KEHC 2269 (KLR)
- Parties
- Plaintiff: Shadrack Shikomere Khalisia; Defendant: The Managing Editor, Standard Newspaper; Defendant: Alphonce Mungahu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 121 of 1993
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shadrack Shikomere Khalisia
Plaintiff
The Managing Editor, Standard Newspaper
Defendant
Alphonce Mungahu
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 due to delay by the plaintiff.
- 2 Whether the plaintiff had taken any steps to prosecute the suit before the application for dismissal was filed.
Ratio Decidendi
The court found that the plaintiff had taken a step in the proceedings by setting the suit down for hearing and serving the hearing notice on the defendants before the defendants filed their application for dismissal. This action by the plaintiff negated the basis for dismissal for want of prosecution. The court held that once the defendants were served with the hearing notice, it was inappropriate for them to proceed with the application for dismissal. Therefore, the application was deemed ill-conceived and was dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs
Orders
- The defendants' application for dismissal of the suit for want of prosecution is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Case 121 of 1993
SHADRACK SHIKOMERE KHALISIA ……...………………………. PLAINTIFF
V E R S U S
THE MANAGING EDITOR
STANDARD NEWSPAPER ……...……………………………. 1ST DEFENDANT
ALPHONCE MUNGAHU ………………………………………. 2ND DEFENDANT
R U L I N G
The defendants have applied for the dismissal of the suit for want of prosecution.
It is their contention that for a period of 16 months, from 2nd May, 2006, the plaintiff had failed to take any steps to prosecute the suit.
It is the defendants case that since 21/4/1993 when the suit was filed, the plaintiff had continuously delayed the prosecution thereof.
Consequently, the defendants say that the delay in the prosecution of the case constitutes an abuse of the process of the court, and that it has caused prejudice to the defendants.
On his part, the plaintiff believes that the application was ill-conceived, because the suit had already been set down for hearing.
To my mind the application stands or falls on the significance of the hearing date which the plaintiff has fixed.
First and foremost, there is no doubt that by having the case set down for hearing, the plaintiff had taken a step in the proceedings.
Secondly, the said step was taken on 25/9/2007, which was before the defendants brought the application for dismissal of the suit for want of prosecution.
Thirdly, and more significantly, the defendants were served with the Hearing Notice before they filed the application.
To my mind, as soon as the defendants were served with the Hearing Notice, they ought not to have gone ahead to thereafter file this application.
I therefore agree with the plaintiff, that the application is ill conceived. It is therefore dismissed with costs.
Dated, Signed and Delivered at Kakamega, this 25th day of June, 2008
FRED A. OCHIENG
J U D G E