[2008] KEHC 797 (KLR)
The court found that while the Plaintiff had been lethargic in prosecuting the suit, the Defendant's application for dismissal would not be granted at this stage. The court emphasized that the responsibility to move the case forward lies with the Plaintiff, who must file the necessary documents and set the suit down...
Source-derived case information.
- Citation
- [2008] KEHC 797 (KLR)
- Parties
- Plaintiff: Wilfred Kamau Githua; Defendant: Nation Media Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2059 of 2000
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution disallowed, subject to conditions.
- Judges
- ARM Visram
- Legal Topics
- Dismissal for Want of Prosecution, Case Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Kamau Githua
Plaintiff
Nation Media Group Limited
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 due to inactivity since 11th November, 2004.
- 2 Whether the Plaintiff has provided sufficient justification for the delay in prosecuting the suit.
- 3 Whether the Defendant is entitled to costs of the application.
Ratio Decidendi
The court found that while the Plaintiff had been lethargic in prosecuting the suit, the Defendant's application for dismissal would not be granted at this stage. The court emphasized that the responsibility to move the case forward lies with the Plaintiff, who must file the necessary documents and set the suit down for hearing. However, given the Plaintiff's explanation regarding ongoing settlement discussions and the court's preference to sustain litigation where possible, the court exercised its discretion to give the Plaintiff one final opportunity to proceed. The application for dismissal was disallowed on strict conditions: the Plaintiff must take steps to set the suit down for...
Court Disposition
Application for dismissal for want of prosecution disallowed, subject to conditions.
Orders
- Plaintiff to take steps to set the suit down for hearing within 30 days.
- Plaintiff to pay Defendant's application costs assessed at Kshs.25,000 within 30 days.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2059 of 2000
WILFRED KAMAU GITHUA ………….……..……………. PLAINTIFF
VERSUS
NATION MEDIA GROUP LIMITED ………..………….. DEFENDANT
RULING
In this application dated 8th November, 2006, and brought under Order 16 Rule 5 of the Civil Procedure rules, the Defendant seeks dismissal of this suit for want of prosecution. According to the Defendant, no steps have been taken to prosecute this suit since 11th November, 2004.
In his Replying Affidavit, the Plaintiff states that a list of agreed issues, and a list of Documents have not as yet been filed, hence the suit is not ready for listing. He also avers that the parties have been in discussion to settle the matter, a fact that has not been controverted by the Defendant. In his submissions before this Court, the Plaintiff’s Counsel further argued that the application did not state the sub-rule of Order 16 Rule 5 under which it was brought before this Court, and urged that the application be struck out. He had no authorities for that bold, and completely inaccurate proposition.
This is an old case, and the Plaintiff has been rather lethargic in prosecuting the same. The onus is on him to file the list of issues and documents. The case belongs to him, and he must take steps to move it. He cannot continue to vex the defendant with pending litigation forever. Although I am highly tempted to dismiss this suit for want of prosecution, I will give the Plaintiff one last opportunity to move forward, as I believe we should do everything reasonably possible to sustain, not kill, litigation.
I will disallow this application on the two conditions that the Plaintiff will take steps to set this suit down for hearing within the next 30 days; and pay the costs of the Defendant’s application, which I assess at Kshs.25,000/= within the next 30 days. In the event of failure to comply with either of those two conditions, the Defendant shall be at liberty to apply for dismissal of the suit.
Those are the orders of this Court.
Dated and delivered at Nairobi this 11th day of November, 2008.
ALNASHIR VISRAM
JUDGE