Peter Edick Omondi Anyanga v Kennedy Odhiambo Okongo [2017] KEHC 1639 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL CASE NO. 560 OF 2010

PETER EDICK OMONDI ANYANGA..................PLAINTIFF

VERSUS

KENNEDY ODHIAMBO OKONGO................DEFENDANT

RULING

The matter came up in court on the 3rd November 2017 for Notice to show cause why it should not be dismissed for want of prosecution. The notice is dated the 10th day of October, 2017 and it was done pursuant to order 17 Rule 2 of the Civil Procedure Rules.

The plaint herein was filed on the 28th day November 2010. The defendant filed a statement of defence on the 4th day of March 2011.

In his submissions, while showing cause why the matter should not be dismissed, Counsel for the plaintiff told the court that after the pleadings closed, he made attempts to set down the suit for hearing on the 24th January 2013, but no hearing date was given by the court because his clerk was not able to prove that he had delivered the letter inviting the defendant for fixing.

That, between the years 2014 and 2016, no hearing date was taken because parties were engaged in out- of -court negotiations. The court was told that there were further attempts to fix a hearing date on the 12th day of January 2017, 9th February 2017, 7th March 2017 and on 11th May, 2017 but no date was taken because the court file was not available on all those dates.

That, because of the persistent failure by the registry to make available the court file, the plaintiff’s Counsel wrote to the Deputy Registrar on the 27th day of July 2017 requesting for the court file. He avers that the plaintiff is keen on prosecuting the suit and urged the court not to dismiss the matter.

The court has considered the submissions by the learned counsel for the plaintiff. A cursory perusal of the court record shows that the last action in the matter was taken on the 10/5/2012, when the plaintiff filed the list and bundles of documents which means, for five years, there was no action taken in the matter.

Though Counsel for the plaintiff told the court that parties were engaged  in out - of - court negotiations, no evidence was produced before the court to support that assertion.

On the submission that the plaintiff could not obtain a hearing date as the court file was missing, I have noted that the letters inviting the defendants to fix the matter for hearing were all done in the year 2017.

Even assuming that parties were negotiating the matter out of court, that did not prevent the plaintiff from fixing the matter for hearing.

What is more disturbing is that the plaintiff has not even filed witness statements and parties have not complied with the pre-trial directions under Order 11 of the Civil Procedure Rules, yet Counsel for the plaintiff purported to invite the other party to fix the matter for hearing when the same was not ready for hearing.

Though the reasons given by the Counsel for the plaintiff are not convincing, the court will not dismiss the suit but will order that the same be prosecuted within 6 months failing which it shall stand dismissed.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 15thDay of November, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………..…. For the Plaintiff

…………………………. For the Defendant