[2012] KEHC 5079 (KLR)
The court found that although there had been a significant delay in prosecuting the suit, the plaintiff had demonstrated attempts to have the matter listed for hearing, which were unsuccessful due to administrative reasons beyond their control. The defendant also failed to take proactive steps to fix a hearing date....
Source-derived case information.
- Citation
- [2012] KEHC 5079 (KLR)
- Parties
- Plaintiff: Paul Muli & Stella Kanini Mutisya T/A Stepal Dressmaking & Sign; Defendant: Nation Media Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 811 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Defamation Claims, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Muli & Stella Kanini Mutisya T/A Stepal Dressmaking & Sign
Plaintiff
Nation Media Group Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction since 2005.
- 2 Whether the plaintiff has taken reasonable steps to prosecute the suit.
- 3 Whether the defendant contributed to the delay by not taking a hearing date.
Ratio Decidendi
The court found that although there had been a significant delay in prosecuting the suit, the plaintiff had demonstrated attempts to have the matter listed for hearing, which were unsuccessful due to administrative reasons beyond their control. The defendant also failed to take proactive steps to fix a hearing date. In the interests of justice and considering both parties' responsibilities, the court exercised its discretion not to dismiss the suit but instead granted the plaintiff a further period of 45 days to place the suit on the hearing list. The application for dismissal was therefore dismissed, but without an award of costs to either party.
Court Disposition
application dismissed
Orders
- The application for dismissal for want of prosecution is dismissed.
- The plaintiff is granted 45 days to place the suit on the hearing list.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURST
CIVIL SUIT NO.811 OF 2003
PAUL MULI & STELLA KANINI MUTISYA
T/A STEPAL DRESSMAKING & SIGN........................................PLAINTIFF/RESPONDENT
VERSUS
NATION MEDIA GROUP LIMITED................................................. DEFENDANT/APPLICANT
RULING
Application dated 29/11/2010 by Notice of Motion seeks Orders that this suit be dismissed for want of prosecution and costs be awarded to Defendant.
The application is based on grounds stated namely that the matter was before court in November 2005. No action has been taken since then. This is an old matter which was filed in August 2003.
The supporting affidavit shows that this suit is in defamation and has been in court since 1/8/2003 claiming general damages, exemplary and aggravated. Although matter was last fixed for hearing on 21st and 22nd November 2005 it was not confined for hearing.
The matter has been pending for last 5 years. In reply Paul Muli has sworn affidavit saying there has been attempts to place the matter for hearing list. That there was a call over on 29/6/2011 which was attended by their advocates but the case was not listed. It was not on Daily Cause List for 6/7/2011. It was like that until when they were served with this application on 7/9/2011.
I have considered the parties stand. There is no reason why the defendant did not take hearing date in time. Furthermore the plaintiff has shown that he has taken steps to fix the case from hearing but unsuccessfully. In the circumstances I allow further period to the plaintiff to place the suit on the hearing list within the next 45 days.
The application is dismissed but without costs.
Orders accordingly.
Dated and Delivered at Nairobi this 16th day of February 2012.
J.N. KHAMINWA
JUDGE