[2007] KEHC 359 (KLR)
The court found that the Defendant did not contradict the Plaintiff's explanation for the delay, including the change of the Defendant's advocate and the difficulties in effecting service. The Plaintiff had complied with previous court orders and made efforts to proceed with the case. The Defendant's new advocate...
Source-derived case information.
- Citation
- [2007] KEHC 359 (KLR)
- Parties
- Respondent: Stephen Macharia Kariuki; Applicant: Mwihaki Kariuki; Applicant: Mwangi Gachara
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 56 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs to the Plaintiff
- Legal Topics
- Dismissal for Want of Prosecution, Service of Process, Affidavit Requirements, Substituted Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Macharia Kariuki
Respondent
Mwihaki Kariuki
Applicant
Mwangi Gachara
Applicant
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 XVI Rule 5 of the Civil Procedure Rules.
- 2 Whether the Plaintiff was at fault for delay in prosecuting the suit.
- 3 Whether failure to serve the Defendant in time justified dismissal of the suit.
Ratio Decidendi
The court found that the Defendant did not contradict the Plaintiff's explanation for the delay, including the change of the Defendant's advocate and the difficulties in effecting service. The Plaintiff had complied with previous court orders and made efforts to proceed with the case. The Defendant's new advocate failed to serve the notice of appointment and the application in time, which contributed to the delay. Therefore, the court held that the application for dismissal for want of prosecution could not succeed as the delay was not attributable to the Plaintiff's fault.
Court Disposition
application dismissed with costs to the Plaintiff
Orders
- The Notice of Motion dated 12th January 2006 is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL CASE 56 OF 2001 (O.S.)
STEPHEN MACHARIA KARIUKI………..1ST PLAINTIFF/RESPONDENT
MWIHAKI KARIUKI……………………..……..2nd PLAINTIFF/APPLICANT
Versus
MWANGI GACHARA………......……………….DEFENDANT/APPLICANT
RULING
The Defendant’s Notice of Motion is dated 12th January 2006. The same is brought under Order XVI Rule 5 of the Civil Procedure Rules. The Defendant seeks the dismissal of the Plaintiff’s suit for want of prosecution. In the supporting affidavit, the Defendant deponed that the Plaintiff since the 25th November 2004 had failed to fix this matter for hearing. The Defendant deponed that he is anxious for this suit to be heard and determined. In opposition the Plaintiff filed a Replying Affidavit. In that Replying Affidavit it s deponed that on the 18th November 2004 a ruling was delivered on a preliminary objection. The essence of that objection was that the Plaintiff had failed to annex a copy of the title to the Originating Summons. During that time the Defendant was represented by the firm of S. M. Wahome & Co. Advocates. The Court in its ruling ordered the Plaintiff to file another affidavit annexing the title. That indeed was done by the Plaintiff. The Plaintiff further deponed that soon after the ruling was delivered Mr. Wahome, the proprietor of S. M. Wahome & Co. Advocates joined the Judiciary. The Plaintiff embarked on tracing the Defendant for purposes of service. The Plaintiff was not successful and therefore proceeded to invite the Defendant to the Registry for the purpose of fixing this case for hearing. The hearing was taken exparte for 26th January 2006 and the case did not proceed for hearing because the Defendant had not been served. The Plaintiff did request the court that they be allowed to serve the Defendant by substituted service and the Court directed that a formal application be made. It does seem that the Defendant had instructed the present advocate to act for him and the Notice of Appointment was filed in court on 13th February 2006. The present application was filed on 18th January 2006. The Plaintiff deponed that that application was not served until after the hearing date of this case had passed. The Plaintiff therefore sought that the application be dismissed.
In considering the application, it is important to note that the Defendant did not contradict the Plaintiff on deposition in the replying affidavit. The Defendant did not contradict the statement that his former lawyer joined the Judiciary and that the Plaintiff was unable to trace him nor did he contradict the statement that his present advocate did not serve the notice of appointment and the present application in time. Had the present advocate served the Plaintiff in time the date taken, that is, 26th January 2006 for the hearing of this suit, that hearing may well have proceeded. I am therefore of the view that the application by the Defendant cannot succeed in view of what is stated herein. The Notice of Motion dated 12th January 2006 is therefore hereby dismissed with costs to the Plaintiff.
Dated and delivered at Nyeri this 28th day of September 2007.
MARY KASANGO
JUDGE