[2008] KEHC 235 (KLR)
The court found that while the plaintiff/respondent had been lax in prosecuting the suit, the application for dismissal was premature. The court emphasized that under the amended Civil Procedure Rules, matters should be mentioned before a judge prior to setting hearing dates, and only after such mention should an...
Source-derived case information.
- Citation
- [2008] KEHC 235 (KLR)
- Parties
- Plaintiff: Shajanand Hardware (K) Ltd; Defendant: Kiron Works (Rono)
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 23 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss Suit for Lack of Prosecution
- Outcome
- Application to dismiss suit for lack of prosecution declined; costs awarded to defendant/applicant.
- Legal Topics
- Dismissal for Lack of Prosecution, Delay in Prosecution, Contract for Goods Sold, Pretrial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shajanand Hardware (K) Ltd
Plaintiff
Kiron Works (Rono)
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss Suit for Lack of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to the plaintiff's inaction.
- 2 Whether the plaintiff's explanation for delay is sufficient to avoid dismissal.
- 3 Whether costs should be awarded to the defendant/applicant.
Ratio Decidendi
The court found that while the plaintiff/respondent had been lax in prosecuting the suit, the application for dismissal was premature. The court emphasized that under the amended Civil Procedure Rules, matters should be mentioned before a judge prior to setting hearing dates, and only after such mention should an application for dismissal be considered. The plaintiff's explanation for delay, though unsatisfactory, did not warrant dismissal at this stage. The court declined to dismiss the suit but awarded throwaway costs to the defendant/applicant.
Court Disposition
Application to dismiss suit for lack of prosecution declined; costs awarded to defendant/applicant.
Orders
- Application for dismissal is declined.
- Plaintiff/respondent to proceed with the suit.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Civil Case 23 of 2008
SHAJANAND HARDWARE (K) LTD ………………………..PLAINTIFF
VERSUS
KIRON WORKS (RONO) …………..…………………….. DEFENDANT
RULING
ON APPLICATION TO DISMISS SUIT FOR LACK OF PROSECUTION
I: Background
1. The subject of the main suit herein is that of contract for goods sold and delivered. The original Plaintiffs/respondent sued the defendant/applicant at the High Court of Kenya at Kisumu. The place of being sued was questioned which the plaintiffs conceded and parties had the matter transferred to the High Court of Kenya at Kericho for hearing.
2. The suit had been filed on 7th November, 2007 and transferred on 27th May, 2008. By 29th May, 2008 the defendant/applicant was notified of the availability of the file. For five months thereafter nothing occurred. No action had been taken by the plaintiffs/respondent.
3. By an application dated 13th November, 2008 the defendant/applicant prayed for this Court to dismiss the suit for lack of prosecution.
II: Application Notice of Motion 13th November, 2008
4. The defendant/applicant stated that the plaintiff/respondent was no longer interested in this matter and therefore the suit be dismissed for lack of prosecution.
5. In reply the advocate for the plaintiff/respondent stated that at the time of filing suit, documents relied on were misplaced and or missing in two of their offices namely Kisumu and Kericho. It therefore meant looking for them but this was compounded by the absence of staff who had since left its employment. Now they are ready and have complied with the presequite of discoveries.
IIl: Opinion.
6. A suit should have never been filed without first verifying your facts and documents. It was indeed presumptions for the plaintiff/respondent to file suit before their documentation to prove their allegations had been set.
7. In this situation the plaintiff/respondent state that they are now ready to proceed with the trial.
8. What should have actually occurred is that after the close of pleadings a notice under order 10 r 11a CPR is to be issued by the parties that they would rely on. The respondent/plaintiff who claims to rely on such documents required to first do so.
9. In fact I am unable to see any reply to the defence on this file.
10. The rules have further changed whereby, apart from supervising themselves on pretrial issues, the rules of August, 2008 require that the matter be mentioned once before a Hon. Judge, before hearing dates are taken.
11. Whereas I do agree that the Plaintiff/respondent has been lax in this matter, the application for dismissal should be made after the mention before the court on taking a hearing date.
12. I decline to make orders of dismissal but I will award costs to the defendant/applicant throw away Kshs. 5,000/=.
DATED this 17th day of December, 2008 at Kericho
M.A. ANG’AWA
JUDGE
Advocate
J.M. Maanuke instructed by M/S Bruce Odeny & Co. advocates
for the Plaintiff/respondent
M.L. Ombachi instructed by Ombachi & Co. advocates
for the defendant/applicant.