[2018] KEHC 4674 (KLR)
The court found that the reasons advanced by the Plaintiff for the delay in prosecuting the suit—namely, the time taken to obtain letters of administration for the 4th Defendant and the disagreements between the Plaintiff and his former advocate—were plausible and had not been controverted by the Defendants. The...
Source-derived case information.
- Citation
- [2018] KEHC 4674 (KLR)
- Parties
- Plaintiff: Timothy Nduvi Mutungi; Defendant: Daima Bank Limited (In Liquidation); Defendant: Deposit Protection Fund Board; Defendant: Travel Concepts Limited; Defendant: Jonathan Muia Nziuko; Defendant: Idah Nduva; Defendant: Musan Enterprises Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 269 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Case Management, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Nduvi Mutungi
Plaintiff
Daima Bank Limited (In Liquidation)
Defendant
Deposit Protection Fund Board
Defendant
Travel Concepts Limited
Defendant
Jonathan Muia Nziuko
Defendant
Idah Nduva
Defendant
Musan Enterprises Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Dismissal 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 the reasons advanced by the Plaintiff for the delay in prosecuting the suit—namely, the time taken to obtain letters of administration for the 4th Defendant and the disagreements between the Plaintiff and his former advocate—were plausible and had not been controverted by the Defendants. The court held that these explanations constituted sufficient cause for the delay and, therefore, the application for dismissal for want of prosecution lacked merit. The court exercised its discretion to refuse the dismissal, allowing the suit to proceed to hearing.
Court Disposition
application dismissed
Orders
- The application dated 24th April, 2013 is dismissed with costs to the Plaintiff, pending the outcome of the suit.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NUMBER 269 OF 2011 (OS)
IN THE MATTER OF SECTION 27 OF THE LIMITATIONS ACT CHAPTER 22 LAWS OF KENYA
AND
IN THE MATTER OF SECTION 1, 1B, 3, 3A OF THE CIVIL PROCEDURE ACT
AND
ORDER 37 RULE 6 (1) AND RULE 34 OF THE CIVIL PROCEDURE RULES
AND
IN THE MATTER OF SECTION 288 OF THE COMPANIES ACT CHAPTER 486 LAWS OF KENYA
AND
IN THE MATTER OF SECTION 36 OF THE BANKING ACT CHAPTER 488 LAWS OF KENYA
BETWEEN
TIMOTHY NDUVI MUTUNGI.........................................................................PLAINTIFF
VERSUS
DAIMA BANK LIMITED (IN LIQUIDATION).................................... 1ST DEFENDANT
DEPOSIT PROTECTION FUND BOARD............................................. 2ND DEFENDANT
TRAVEL CONCEPTS LIMITED............................................................. 3RD DEFENDANT
JONATHAN MUIA NZIUKO.................................................................. 4TH DEFENDANT
IDAH NDUVA............................................................................................ 5TH DEFENDANT
MUSAN ENTERPRISES LIMITED........................................................ 6TH DEFENDANT
R U L I N G
Daima Bank Ltd (In Liquidation) and Deposit Protection Fund Board, the 1st and 2nd Defendants took out the motion dated 24th April, 2013 and applied for this suit to be dismissed for want of prosecution. The motion is supported by the affidavit of Onesmus Muli.
When served with the motion, Timothy Nduvi Mutungi the Plaintiff/Respondent filed a replying affidavit he swore to oppose the application.
When the motion came up for inter-parties hearing, learned counsels appearing in the matter were allowed to make oral submissions. The 1st and 2nd Defendants argued that it is now more than one (1) year since this suit came up before court and the Plaintiff has failed to take the relevant steps to have the suit ready for hearing. The duo pointed out that the Plaintiffs appear to have lost interest in pursuing the suit, therefore, it is just and fair for the suit to be dismissed for want of prosecution.
The Plaintiff has strenuously opposed the application and has enumerated the factors which caused the delay in prosecuting the suit.
First, it is argued that the 4th Defendant took time to obtain letters of Administration. Secondly, it is stated that there were serious difference between him and the firm of N. R. Nyamai & Co. Advocates. It is the Plaintiff’s submission that the clash between the Plaintiff and the Defendants further delayed the conclusion.
I have carefully considered the response vis-à-vis the arguments put forward in support of the motion and it is clear that the Defendants have not controverted the reasons advanced in support the application for dismissal. The Plaintiff has been categorical that the delay was caused by the disagreement he has had with his erstwhile advocate. It is also not in dispute that it took time to obtain the letters of administration on behalf of the aforesaid defendant.
I find the reasons advanced to explain the delay to be plausible. Consequently, I find no merit in the appliction dated 24th April, 2013. The same is dismissed with costs awaiting the outcome of the suit.
Dated, signed and delivered at Nairobi this 20th day of July, 2018.
...........................
J K SERGON
JUDGE
In the presence of
............................. for the plaintiff
........................ for the Defendants