[2019] KEHC 4934 (KLR)
The court found that while the plaintiff's explanation for the delay—non-availability of the court file—was not fully satisfactory, and the supporting letter was not registry-stamped (raising doubt as to its delivery), the interest of justice required giving the plaintiff a final opportunity. The court noted that...
Source-derived case information.
- Citation
- [2019] KEHC 4934 (KLR)
- Parties
- Plaintiff: Stephen Mwicigi Muiruri; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 391 of 2008
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff granted six months to prosecute, failing which suit stands dismissed.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court File Availability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mwicigi Muiruri
Plaintiff
The Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause 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 reasons advanced by the plaintiff for the delay are sufficient to prevent dismissal.
Ratio Decidendi
The court found that while the plaintiff's explanation for the delay—non-availability of the court file—was not fully satisfactory, and the supporting letter was not registry-stamped (raising doubt as to its delivery), the interest of justice required giving the plaintiff a final opportunity. The court noted that the defendant had also failed to comply with procedural requirements. Balancing these factors, the court exercised discretion not to dismiss the suit immediately but ordered that the plaintiff must prosecute the suit within six months, failing which it would stand dismissed automatically. This approach was taken to ensure fairness while upholding the need for expeditious litigation.
Court Disposition
Suit not dismissed; plaintiff granted six months to prosecute, failing which suit stands dismissed.
Orders
- The suit shall be prosecuted within six months from the date hereof, failing which it shall stand dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 391 OF 2008
STEPHEN MWICIGI MUIRURI............................PLAINTIFF
-VERSUS-
THE ATTORNEY GENERAL............................DEFENDANT
RULING
The matter herein was filed in the year 2008 and due to the slow pace at which it is being prosecuted, the court on its own motion issued the parties with a notice to show cause why the same should not be dismissed for want of prosecution.
When the same was listed for hearing of the notice to show cause on the 29th day of March, 2019 counsel for the plaintiff sought the leave of the court to file an affidavit in response to the same.
The court has considered the contents of the Replying affidavit and has noted that the reasons given for non prosecution of the suit is non availability of the court file at the registry. The plaintiff avers that he made efforts to follow up with the registry and has annexed a letter dated 25th day of April 2018 to the Deputy Registrar wherein he sought the Deputy Registrar’s intervention in tracing the file.
The court has noted that the letter referred to is not stamped with the registry stamp and it is highly probable that the same might not have been delivered to the Registrar. The record further shows that before it was first listed for dismissal, it was last in court on 18th September, 2017 before Hon. Justice Mwongo when there was no appearance by both parties and the judge order that parties may move the court within 30 days of that date. This was not done. The plaintiff did not take any action until the matter was listed for notice to show cause.
Upon perusal of the court record, it is also noted that the plaintiff has complied with Order II of the Civil Procedure Rules but the defendant has not yet done so. This is notwithstanding the fact that the defendant has had ample time within which so to do. Litigation must come to end. Though the court is not fully satisfied that the plaintiff has taken serious steps to prosecute the matter, in the interest of justice, I will spare the suit from dismissal and order that the same be prosecuted within 6 six months from the date hereof failing which, it shall stand dismissed.
Dated, signed and delivered at NAIROBI this 11TH day of JULY, 2019.
...........................
L. NJUGUNA
JUDGE
In the presence of:
……………………………. for the Plaintiff/Respondent
……………………………. for the Defendant/Applicant