[2011] KEHC 570 (KLR)
The court found that the Plaintiff had provided a reasonable explanation for the delay in prosecuting the suit, specifically citing efforts to amend the Plaint and the unavailability of the court file for a significant period. The court held that the delay could not be termed as inordinate in the circumstances....
Source-derived case information.
- Citation
- [2011] KEHC 570 (KLR)
- Parties
- Plaintiff: Virgin Spirit Travel Limited; Defendant: Maasai Mara Koiyaki Lemek Wildlife Trust
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 724 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- KH Rawal
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Application of Order 17 Rule 2, Court Discretion, Explanation of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Virgin Spirit Travel Limited
Plaintiff
Maasai Mara Koiyaki Lemek Wildlife Trust
Defendant
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 17, Rule 2(3) of the Civil Procedure Rules 2010.
- 2 Whether the delay by the Plaintiff in prosecuting the suit was inordinate and unexplained.
Ratio Decidendi
The court found that the Plaintiff had provided a reasonable explanation for the delay in prosecuting the suit, specifically citing efforts to amend the Plaint and the unavailability of the court file for a significant period. The court held that the delay could not be termed as inordinate in the circumstances. Furthermore, the court reiterated that dismissal for want of prosecution is a drastic remedy that should only be employed as a last resort, and that threshold had not been met in this case. Accordingly, the application for dismissal was dismissed, and costs were ordered to be in the cause.
Court Disposition
application dismissed
Orders
- The application dated 28th June 2011 is dismissed.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MILIMANI LAW COURTS
CIVIL CASE NO 724 OF 2006
VIRGIN SPIRIT TRAVEL LIMITED...................................................PLAINTIFF/RESPONDENT
VERSUS
MAASAI MARA KOIYAKI LEMEKWILDLIFE TRUST......................DEFENDANT/APPLICANT
RULING
The Notice of Motion dated 28th June 2011 is filed by the Defendant to seek prayers inter alia that the suit herein be dismissed for want of prosecution as provided in Order 17, Rule 2(3) of the Civil Procedure Rules 2010. The application is based on the grounds set forth on its face and on the Supporting Affidavit sworn on 28th June 2011 by the treasurer and trustee of the Defendant, Francis Nkoitoi.
The reason for the prayer is on the ground that since the suit was last adjourned on 16th June 2008, the Plaintiff has failed to take any action on fixing the suit for hearing.
The Plaintiff’s advocate Mr. Kariuki Muigua has sworn a Replying affidavit on 17th October 2011 and grounds of opposition dated 14th October 2011 in opposition to the application. As can be seen from the said affidavit the Plaintiff has been engaging firstly with application to amend the Plaint of 14th July 2008 and thereafter up to 21st July 2011 to trace the file which was not available since 1st October 2008. The affidavit has annexed the relevant letters mentioned in the affidavit. I may then state that the Plaintiff has reasonably explained the delay which, in circumstances of this case, cannot be termed as inordinate.
It is also trite that the court shall take the drastic remedy of dismissal of a suit as the last resort. I do not think the court has reached that stage.
In view of the premises I dismiss the application on hand. The cost of the application shall be in the cause.
Orders accordingly
Dated, signed and delivered at Nairobi this 16th day of November, 2011.
K H RAWAL
JUDGE
16. 11. 2011