[2014] KEHC 7774 (KLR)
The court found that it would be unjust to require the plaintiff in Nairobi CMCC No. 1490 of 2003 to continue waiting for the determination of the test suit, which had been delayed for over ten years due to circumstances beyond her control, including missing court records and changes in presiding judges. The court...
Source-derived case information.
- Citation
- [2014] KEHC 7774 (KLR)
- Parties
- Plaintiff: Suleiman Mbango; Defendant: Mboya Wambua; Defendant: Samuel Maina Kavetu; Defendant: Equator Auto Mobiles; Defendant: G. Kingoo; Defendant: F K Mukora
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1079 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Remove Suit From Test Suit Order
- Outcome
- application allowed
- Judges
- DW Mbuteti
- Legal Topics
- Test Suit Procedure, Delay of Justice, Road Accident Liability, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suleiman Mbango
Plaintiff
Mboya Wambua
Defendant
Samuel Maina Kavetu
Defendant
Equator Auto Mobiles
Defendant
G. Kingoo
Defendant
F K Mukora
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Remove Suit From Test Suit Order
Legal Issues
- 1 Should the plaintiff in Nairobi CMCC No. 1490 of 2003 be released from the test suit order to prosecute her suit independently due to inordinate delay?
- 2 Is it just to continue binding the plaintiff to the outcome of a test suit that has not been determined for over ten years?.
Ratio Decidendi
The court found that it would be unjust to require the plaintiff in Nairobi CMCC No. 1490 of 2003 to continue waiting for the determination of the test suit, which had been delayed for over ten years due to circumstances beyond her control, including missing court records and changes in presiding judges. The court exercised its discretion to release her suit from the test suit order, allowing her to prosecute her claim independently, as continued delay would amount to a denial of justice.
Court Disposition
application allowed
Orders
- The plaintiff's suit (Nairobi CMCC No. 1490 of 2003) is removed from the test suit order to enable her to prosecute it independently.
- Costs of the application will be in her said suit.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO 1079 OF 2002 (O.S.)
(IN THE MATTER OF AN APPLICATION BY BETH NTHENYA MBUVI, PLAINTIFF IN NAIROBI CMCC NO 1490 OF 2003)
SULEIMAN MBANGO..................................................PLAINTIFF
V E R S U S
MBOYA WAMBUA
SAMUEL MAINA KAVETU
EQUATOR AUTO MOBILES
G. KINGOO
F K MUKORA..................................................DEFENDANTS
R U L I N G
1. Following a road accident on 5th December 2001 very many suits for damages in negligence (no fewer than 27 of them) were filed in various courts in Nairobi, Machakos and Kangundo. Those suits include the present suit (Nairobi HCCC No. 1079 of 2002) and Nairobi CMCC No. 1490 of 2003(Beth Nthenya Mbuvi – vs – Mboya Wambua).
2. By an order entered herein on 8th May 2003, it was directed that this present suit be tried as a test suit on the issue of liability in respect to all the related suits, and the judgment on liability rendered in the test suit to bind all those suits. All the other cases were thus stayed pending disposal of the test case on the issue of liability.
3. Over ten (10) years down the line the test suit (which is the present suit) has not yet been determined. The plaintiff in Nairobi CMCC No. 1490 of 2003 cannot wait any longer and has applied by chamber summons dated 5th April 2013 for an order that her suit be released from the order of test suit made herein in order to enable her to prosecute her suit independently.
4. I have considered this application in light of opposition by the Plaintiff (replying affidavit filed on 27th September 2013). Ten (10) years is too long to wait for the test suit to be heard and determined. It need not be the Plaintiff’s fault in that the test suit has not been disposed of. The trial thereof was conducted by two judges: Osiemo, J took the Plaintiff’s case before he retired from the bench. Rawal, J took the defence case before she was elevated to the Court of Appeal and later to the office of Deputy Chief Justice of the Republic of Kenya. Hearing concluded before her on 26th January 2012 and the parties filed submissions.
5. In the course of typing the proceedings so that another judge might take on the task the preparing judgment, it was discovered that the defence case which was apparently recorded by a stenographer was missing from the record. Efforts to trace the same, or even to identify the stenographer, have been futile. The possibility is that the defence case may have to be taken again.
6. In these circumstances should the plaintiff in Nairobi CMCC No. 1490 of 2003 be made to wait any longer? I think not. It would not be just to make her wait a single more day!
7. I will allow her application by chamber summons dated 5th April 2013. Her case is hereby removed from the test suit order herein to enable her to prosecute it independently. Costs of the application will be in her said suit. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF APRIL 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 4TH DAY OF APRIL 2014