Mboe Sambu Resources Ltd v Stephen Samwel Paino & another [2020] eKLR Case Summary

Court
High Court of Kenya at Narok
Category
Civil
Judge(s)
J. M. Bwonwong’a
Judgment Date
October 15, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Mboe Sambu Resources Ltd v Stephen Samwel Paino & another [2020] eKLR, highlighting key legal principles and outcomes. Perfect for legal professionals and students.

Case Brief: Mboe Sambu Resources Ltd v Stephen Samwel Paino & another [2020] eKLR

1. Case Information:
- Name of the Case: Mboe Sambu Resources Ltd v. Stephen Samwel Paino & Francis Edward Strange
- Case Number: Civil Case No 23 of 2018
- Court: High Court of Kenya at Narok
- Date Delivered: October 15, 2020
- Category of Law: Civil
- Judge(s): J. M. Bwonwong’a
- Country: Kenya

2. Questions Presented:
- Whether the delay in prosecuting the plaintiff's suit is excusable.
- Whether the delay is likely to cause injustice to the defendants.
- Who should bear the costs of the application for dismissal for want of prosecution.

3. Facts of the Case:
- The plaintiff, Mboe Sambu Resources Ltd, filed a suit against the defendants, Stephen Samwel Paino and Francis Edward Strange, on November 8, 2018, claiming special damages amounting to Shs. 50,000,000/-.
- The second defendant filed an application seeking to dismiss the suit for want of prosecution, citing the plaintiff's failure to list the matter for a case conference for over a year and two months, which he argued constituted an abuse of court process.
- The plaintiff's managing director, Stephen Kimanyi, responded by stating that service upon the first defendant was not possible without resorting to substituted service, and that they had been awaiting the outcome of a related criminal case involving the second defendant. The plaintiff also changed advocates due to delays in prosecution attributed to the COVID-19 pandemic.

4. Procedural History:
- The second defendant filed a motion for dismissal of the plaintiff's suit for want of prosecution, supported by a detailed affidavit outlining the delays.
- The plaintiff opposed the application with a replying affidavit, detailing the reasons for the delays and the changes in legal representation.
- The court considered the affidavits and the applicable law to determine the merits of the application.

5. Analysis:
- Rules: The court referenced Order 51 Rule 1, Order 17 Rules 3 and 4 of the Civil Procedure Rules, and Articles 48, 50(1), and 159(2)(b) of the Constitution of Kenya, which emphasize the right to access justice and the duty of the court to ensure cases are heard without undue delay.
- Case Law: The court did not explicitly cite previous cases in the ruling, but the principles derived from case law regarding the dismissal of suits for want of prosecution and the need to balance the rights of litigants were implicitly applied.
- Application: The court found that the delay of slightly over one year was excusable due to the plaintiff's inability to serve the first defendant timely and the impact of the COVID-19 pandemic on the legal process. It also noted that the plaintiff should not be penalized for the mistakes of their advocate. The court concluded that no grave injustice would occur to the defendants as a result of the delay.

6. Conclusion:
- The court dismissed the application to strike out the plaintiff's suit for want of prosecution, ruling that the delay was excusable and would not cause substantial injustice to the defendants. The costs of the application were ordered to be borne by the parties as they arise in the cause.

7. Dissent:
- There were no dissenting opinions noted in the ruling.

8. Summary:
- The High Court of Kenya at Narok ruled in favor of the plaintiff, Mboe Sambu Resources Ltd, by dismissing the second defendant's application to dismiss the case for want of prosecution. The decision underscores the court's commitment to ensuring access to justice, particularly in light of delays caused by external factors such as the COVID-19 pandemic. The ruling emphasizes the importance of considering the circumstances surrounding delays in civil litigation and the need to balance the rights of both plaintiffs and defendants.

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