[2019] KEHC 5253 (KLR)
The court found that while there had been delay in prosecuting the suit, the matter was part-heard and it was only fair to grant the plaintiff a final opportunity to prosecute the case. The court exercised its discretion in favour of substantive justice, ordering that the suit be prosecuted within 90 days, failing...
Source-derived case information.
- Citation
- [2019] KEHC 5253 (KLR)
- Parties
- Plaintiff: Ted Njau Njogu; Defendant: The People Media Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 73 of 2014
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Suit not dismissed; plaintiff granted 90 days to prosecute, failing which suit stands dismissed.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ted Njau Njogu
Plaintiff
The People Media Group Limited
Defendant
Procedural Posture
Civil Suit / 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 plaintiff should be granted additional time to prosecute the suit.
Ratio Decidendi
The court found that while there had been delay in prosecuting the suit, the matter was part-heard and it was only fair to grant the plaintiff a final opportunity to prosecute the case. The court exercised its discretion in favour of substantive justice, ordering that the suit be prosecuted within 90 days, failing which it would stand dismissed. This approach balanced the need to avoid undue delay with the plaintiff's right to be heard.
Court Disposition
Suit not dismissed; plaintiff granted 90 days to prosecute, failing which suit stands dismissed.
Orders
- The suit shall be prosecuted within 90 days from the date of this ruling.
- If the suit is not prosecuted within 90 days, it shall stand dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 73 OF 2014
TED NJAU NJOGU...........................................................PLAINTIFF
VERSUS
THE PEOPLE MEDIA GROUP LIMITED.................DEFENDANT
R U L I N G
This matter was filed in the year 2014 and due to the slow pace at which it is being prosecuted, the court issued notices to the parties to show cause why it should not be dismissed for want of prosecution.
The matter was listed on 21/06/2019 for the said purpose when counsel for the Plaintiff prayed for time within which to file an affidavit in response to the said notice. Both counsels on record filed affidavits in support of their respective positions.
In an affidavit sworn by counsel currently on record for the Plaintiff, it is deponed that he held a meeting with the Plaintiff on the 29th August, 2017 during which, the Plaintiff expressed his intention to instruct their firm of Advocates to act for him in this matter in place of Ongoya & Wambola Advocates. That counsel had expected the Plaintiff to instruct their firm formally and therefore they took no steps in the matter under the mistaken impression that they were yet to be formally instructed, whereas, it was the Plaintiff’s understanding that the said meeting constituted his instructions to the firm to act for him in the matter.
That due to that misunderstanding, no action was taken in the matter precipitating the issuance of the notice to show cause by the court. He has urged the court not to dismiss the matter.
On its part, counsel for the Defendant has supported the dismissal and has filed an affidavit sworn by its counsel, Rose Munyase demonstrating how the Defendant has been willing to have the matter disposed of but the Plaintiff has been indolent.
She avers that it’s only upon receipt of the notice to show cause that the Plaintiff sprung to action adding that were it not for the same, the Plaintiff would still be in deep slumber exhibiting great indolence at the expense of the Defendant.
The court has considered the contents of the respective affidavits and the facts as captured therein. The court notes that there has been a delay in prosecuting this matter and the last time it was in court was on 25th October, 2016 when it partly proceeded for hearing.
The record shows that thereafter, the Plaintiff fixed the matter for hearing on the 15th day of August, 2017 which fell on court vacation. Thereafter no other action was taken until the 21st June, 2019 when it was listed for notice to show cause by the court.
Whereas I am in agreement with the defendant that there has been delay I prosecution of this matter, I also note that the same is part heard and it’s only fair that the plaintiff be granted a chance to fully prosecute the same.
In the premises and considering that it is an old matter, I do hereby make an order that the same be prosecuted within 90 days failing which it shall stand dismissed.
Dated, Signed and Delivered at Nairobi this 25th Day of JULY, 2019.
........................
L. NJUGUNA
JUDGE
In the Presence of
............................For the Applicant
........................For the Respondent