[2012] KEHC 1271 (KLR)
The court found that both parties were to blame for the delay in prosecuting the suit, as neither had taken constructive steps to have the matter heard after it was partially heard. The court noted that the defendant, who was enjoying the benefit of a temporary injunction, could not solely blame the plaintiff for...
Source-derived case information.
- Citation
- [2012] KEHC 1271 (KLR)
- Parties
- Plaintiff: West Kenya Wholesalers Limited; Defendant: National Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 80 of 1999
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution and Discharge of Injunction
- Outcome
- Application dismissed. No order as to costs. Matter to be fixed for hearing within thirty days.
- Judges
- HK Chemitei
- Legal Topics
- Dismissal for Want of Prosecution, Injunctions, Delay in Prosecution, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
West Kenya Wholesalers Limited
Plaintiff
National Bank of Kenya Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution and Discharge of Injunction
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the temporary orders of injunction should be discharged.
- 3 Whether the delay in prosecuting the suit is excusable or prejudicial to the defendant.
Ratio Decidendi
The court found that both parties were to blame for the delay in prosecuting the suit, as neither had taken constructive steps to have the matter heard after it was partially heard. The court noted that the defendant, who was enjoying the benefit of a temporary injunction, could not solely blame the plaintiff for the delay. The court accepted the plaintiff's explanation of illness and ongoing settlement negotiations as reasonable grounds for the delay. Applying the principles from the cited authorities, the court held that the delay was not solely inexcusable nor was the defendant unduly prejudiced. Therefore, the application for dismissal for want of prosecution and for discharge of the...
Court Disposition
Application dismissed. No order as to costs. Matter to be fixed for hearing within thirty days.
Orders
- The application dated 21st March 2012 is disallowed.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
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WEST KENYA WHOLESALERS LIMITED …..........................PLAINTIFF
VERSUS
NATIONAL BANK OF KENYA LIMITED …...........................DEFENDANT
RULING
The defendant vide its application dated 21st March 2012 prayers for this suit to be dismissed for want of prosecution and alternatively the temporary orders of injunction issued on 3rd August 1999 be discharged.
The defendant states that no action has been undertaken by the plaintiff as from 24th February 2011. The last time this matter came up for hearing was on 27th June 2007 before my brother Justice Warsame.
The application is opposed by the plaintiff. The replying affidavit by Juma Muchemi sworn on 27th September 2012 speak much.
There is evidence that the plaintiff has been sick and has even undergone kidney transplant. There is evidence that parties have been negotiating with a view of setting this matter. The differences that can be deduced from the affidavit of the plaintiff is that they seemed to disagree on the exact figures payment.
A further glance at the proceedings shows that neither of the parties has taken any constructive steps to have this matter heard after being partially heard by Justice Warsame.
On 1st July 2009, 9th June 2010 and 24th February 2011 none of the parties were ready. It would therefore be hypocritical for the defendant to claim that the delay has been occasioned by the defendant who is of course enjoying temporary orders of injunction.
It was held in the case ofAllan =vs= Sir Alfred Mc Alphine & Sons (1968) ALL E. R. that the principles governing application for dismissal for want of prosecution are:
(a)The delay is inordinate
(b)The inordinate delay is inexcusable or
(c )The defendant is likely to be prejudice by the delay”
Further inAgip (Kenya) Ltd =vs= Highlands Tyres Ltd Visram J (as he then was) say:-
“Delay is a matter of fact to be decided on the circumstances of each case. When a reason for the delay is offered the court should be lenient and allow the plaintiff an opportunity to have his case heard and determined on merit. Finally, the court must consider whether the defendant has been prejudiced by the delay. To achieve justice, the court must also consider the possible loss likely to be sustained by the plaintiff if his case is terminated summarily for a procedural default”.
In my opinion both the plaintiff and the defendant should carry the blame. Nothing stooped the defendant from fixing this matter for further hearing and final determination.
I am further attracted by a similar application dated 20th March 2003 which todate remain unprosecuted.
For the foregoing reasons I shall disallow the application with no orders as to costs. The parties must fix this matter for further hearing within the next thirty (30) days from the delivery of this Ruling.
Dated, signed and delivered at Kisumu this 24th day of October 2012.
H. K. CHEMITEI
JUDGE
In the presence of:
Miss Oluoch for Mutiso Advocate for the Plaintiff
Olel for Ohaga Advocate for the defendant
HCK/aao