[2018] KEHC 5856 (KLR)
The court found that the applicants had not demonstrated sufficient diligence in prosecuting the suit, as there was a delay of over three years with minimal action taken beyond correspondence with the Law Society of Kenya. However, in the interest of justice, the court exercised its discretion to grant the...
Source-derived case information.
- Citation
- [2018] KEHC 5856 (KLR)
- Parties
- Applicant: William Timate Sialala; Applicant: Suakei Ole Parkire; Applicant: Latoo Ene Priakanga; Respondent: James M. Rioba t/a J/M. Rioba & Company Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 363 of 2013
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; applicants granted six months to prosecute, failing which suit stands dismissed.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order 17 Rule 2, Affidavit Evidence, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Timate Sialala
Applicant
Suakei Ole Parkire
Applicant
Latoo Ene Priakanga
Applicant
James M. Rioba t/a J/M. Rioba & Company Advocates
Respondent
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction for over three years.
- 2 Whether the applicants have shown sufficient cause to prevent dismissal of the suit.
Ratio Decidendi
The court found that the applicants had not demonstrated sufficient diligence in prosecuting the suit, as there was a delay of over three years with minimal action taken beyond correspondence with the Law Society of Kenya. However, in the interest of justice, the court exercised its discretion to grant the applicants a final opportunity to prosecute the suit within six months from the date of the ruling. Failure to do so would result in automatic dismissal of the suit. The court balanced the need for expeditious disposal of cases with the applicants' right to be heard, but made it clear that further delay would not be tolerated.
Court Disposition
Suit not dismissed; applicants granted six months to prosecute, failing which suit stands dismissed.
Orders
- Applicants to prosecute the suit within six months from the date of this ruling.
- If the suit is not prosecuted within six months, it shall stand dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 363 OF 2013 (O.S)
WILLIAM TIMATE SIALALA................1ST APPLICANT
SUAKEI OLE PARKIRE..........................2ND APPLICANT
LATOO ENE PRIAKANGA.....................3RD APPLICANT
VERSUS
JAMES M. RIOBA T/A J/M.
RIOBA & COMPANY ADVOCATES..........RESPONDENT
RULING
1. On 1st March, 2018, the Court issued a Notice to Show Cause why the suit should not be dismissed for want of prosecution. The suit was listed for dismissal on 8th June 2018 and the Applicants filed an Affidavit dated 11th April, 2018 showing cause why it should not be dismissed. The Applicants attributed the delay in prosecuting the suit to the demise of the Respondent advocate who was the sole proprietor of the law firm. It is deponed that following the last Court attendance on 28th October, 2014 when the court was informed that the Respondent had passed on, the matter was stood over generally. It is further deponed that the Applicants wrote a letter to the Law Society of Kenya (LSK) on 28th October, 2014 enquiring on who the successors of the Respondent’s law firm are. That a reminder was written on 4th March, 2016 and the LSK responded on 16th March, 2016 informing the Applicants that the society no longer appoints successors and that they should contact the family members of the deceased Advocate. The Applicants further depone that since then, they have made efforts to trace the family members in vain but they are willing to make further enquiries from the designated relevant offices on the whereabouts of the deceased advocate’s family members.
2. I have considered the Affidavit of the Applicants and I have also perused the court record. The last time the matter was in court was on 28th October, 2014 when it was stood over generally following the demise of the Respondent. Since then its more than 3 years without any step having been taken to prosecute the suit. Rather than writing the letter to LSK and waiting for two years to send a reminder, the Applicants have not demonstrated any effort to trace the family members of the deceased Advocate after they got a response from LSK which was sent more than 2 years ago.
3. Order 17 Rule 2 of the Civil Procedure Rules, 2010 Provides that
“(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.”
4. The Applicants seek more time to enquire from the relevant offices on the whereabouts of the deceased advocate’s family members and it is their averment that they are ready to comply with any conditions imposed by the court in this matter. In the interest of justice I will grant the applicants an opportunity to prosecute the suit. The same to be prosecuted within 6 months from the date of this ruling failure to which it shall stand dismissed.
Dated, Signed and Delivered at Nairobi this 28th Day of June, 2018.
........................
L. NJUGUNA
JUDGE
In the Presence of
.................................... For the Applicants
................................... For the Respondent