[2010] KEHC 965 (KLR)
Although the plaintiff failed to prosecute the suit diligently and the defendants were justified in seeking dismissal for want of prosecution, the court exercised its discretion not to dismiss the suit. The court considered the plaintiff's age, medical condition, and the fact that only assessment of damages...
Source-derived case information.
- Citation
- [2010] KEHC 965 (KLR)
- Parties
- Plaintiff: William Cherobon Arap Chepkwony; Defendant: Ongere Bosire; Defendant: Nelson J. Bichanga t/a Kisii Express
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 345 of 1995
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed. Suit to proceed to assessment of damages.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Judicial Discretion, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Cherobon Arap Chepkwony
Plaintiff
Ongere Bosire
Defendant
Nelson J. Bichanga t/a Kisii Express
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the plaintiff's medical condition and age justify the court's discretion to allow the suit to proceed.
- 3 Whether only assessment of damages remains in the suit.
Ratio Decidendi
Although the plaintiff failed to prosecute the suit diligently and the defendants were justified in seeking dismissal for want of prosecution, the court exercised its discretion not to dismiss the suit. The court considered the plaintiff's age, medical condition, and the fact that only assessment of damages remained. In the interest of justice, the court directed that the suit be set down for assessment of damages within 90 days and that the registry fix a hearing date on a priority basis. The plaintiff was ordered to bear the costs of the application.
Court Disposition
Application for dismissal for want of prosecution dismissed. Suit to proceed to assessment of damages.
Orders
- The suit shall be set down for assessment of damages within 90 days from the date of the ruling.
- The registry is directed to fix a hearing date on a priority basis.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL SUIT NO. 345 OF 1995
WILLIAM CHEROBON ARAP CHEPKWONY ……....………………… PLAINTIFF
VERSUS
ONGERE BOSIRE …………………….…………………………. 1ST DEFENDANT
NELSON J. BICHANGA t/a KISII EXPRESS ……....…….….. 2ND DEFENDANT
RULING
The defendants’ application dated 21st May, 2008 seeks dismissal of this suit for want of prosecution. It was made on the ground that for a period of more than two years no step had been taken to fix the matter for hearing. The delay was inordinate and inexcusable.
According to an affidavit sworn bySusan W. Murage, the defendant’s advocate, the matter was last fixed for mention on 18th July, 2005 when it was stood over generally. The continued pendency of the suit was prejudicial to the defendant.
The plaintiff filed a replying affidavit and stated that a consent on liability had already been recorded at the ratio of 78:22 in his favour. Thereafter he had been subjected to various medical examinations in an effort to have a settlement on quantum of damages being reached. However, he has been sickly and bed-ridden and as such he had not kept in touch with his advocates. He urged the court to exercise its discretion in his favour.
I have considered the contents of the affidavits on record and the brief submissions by counsel. There can be no denial that the plaintiff’s suit has not been prosecuted diligently. The defendant was justified in filing an application for dismissal of the suit for want of prosecution. But in the interest of justice and considering the age and medical condition of the plaintiff I will not dismiss the suit.
Bearing in mind that only assessment of damages is remaining, I direct that this suit be set down for assessment of damages within the next 90 days from the date hereof. The registry is directed to fix a hearing date on priority basis.
The plaintiff shall bear the costs of this application.
DATED, SIGNED AND DELIVERED AT KISII THIS 29TH DAY OF JULY, 2010.
D. MUSINGA
JUDGE.
29/7/2010
Before D. Musinga, J.
Mobisa – cc
Mr. Mbicha for the Plaintiff
Mr. Oguttu HB for Mrs. Wagaki for the Defendants.
Court: Ruling delivered in open court on 29th July, 2010.
D. MUSINGA
JUDGE.