Introduction
1. Before this Court is a Notice to Show Cause (NTSC) issued suo moto by this Court on whether the Plaintiff’s suit should be dismissed for want of prosecution pursuant to the Court’s inherent jurisdiction and Order 17 Rule 2(1) of the Civil Procedure Rules, 2010.
2. The Plaintiff filed written submissions dated 6th June 2024 in response to the NTSC and urged this Court not to dismiss the suit. The Defendants, on the other hand, also filed submissions, urging the Court to dismiss the suit on grounds of delay, non-compliance with the Court’s directions, and satisfaction of the decree through civil jail committal.
3. The background of this matter is that the Plaintiff instituted this suit vide a Plaint dated 30th August 2017 seeking judgment for Kshs. 34,000,000 based on a consent recorded before Hon. Justice Kimaru in Nairobi High Court Misc. Application No. 441 of 2014, whereby the Defendants are said to have admitted liability.
4. The Plaintiff obtained ex parte judgment on 15th November 2017, which he sought to execute through committal of the Defendants to civil jail. The Defendants subsequently filed applications to set aside the ex parte judgment. The Court (Hon. Lady Justice Margaret Muigai) allowed those applications through a Ruling delivered on 17th May 2021 and directed parties to conduct Case Management within 60 days.
5. The Plaintiff did not comply with the Case Management directive, nor did he take further steps to prosecute the suit until the issuance of the present Notice to Show Cause.
6. The matter proceeded by way of written submissions. The Plaintiff in his submissions dated 6th June 2024, contends that the delay was neither intentional nor inordinate, but arose from factors beyond his control, including: Lack of notification of the ruling setting aside the judgment; A serious fallout with his former advocates, who allegedly withheld the court file and colluded with the Defendants; and difficulty in accessing and reconstructing his case documents.
7. The Plaintiff therefore urged the Court to consider that he has now reconstructed the file and is ready and willing to proceed with the matter. He invokes Article 159 of the Constitution and the principles of substantive justice, citing case law including Fran Investments Ltd v G4S Security Services Ltd [2015] eKLR and Ivita v Kyumbu (1984) KLR 441.
8. The Defendants, on the other hand, filed their joint submissions dated 22nd May 2025 and urged the Court to dismiss the suit for want of prosecution. The Defendants submitted that the Plaintiff has been indolent and has not complied with the Court’s clear directive to conduct Case Management within 60 days from 17th May 2021, and that no review or extension of the timelines was sought by the Plaintiff.
9. It was further the Defendant’s position that the suit is therefore “spent” and should be dismissed as a matter of law. That, in any event, the decree the subject of this suit, was satisfied when the Defendants served the full six-month civil jail committal period.
10. The Defendants submit that justice cannot be served where a Plaintiff sleeps on his rights and resurfaces only after a procedural notice is issued by the Court, and that the Plaintiff has failed to disclose any cogent or credible explanation for the delay.
Analysis and Determination
11. Based on the competing submissions, the only issue for determination is whether the Plaintiff has shown sufficient cause against the dismissal of the suit for want of prosecution.
12. The principles governing dismissal for want of prosecution are well settled. In Ivita v Kyumbu (1984) KLR 441, the Court held:
“The test is whether the delay is prolonged and inexcusable; and if it is, whether justice can still be done despite the delay.”
13. While the delay from May 2021 to May 2024 is substantial, the Plaintiff's explanation, particularly concerning the alleged non-notification of the ruling and the detailed account of the advocate-client dispute (including DCI involvement and file retention), provides a more concrete and potentially excusable reason for the inaction than a mere "casual" response.
14. The claim that the Defendants, who were aware of the ruling, failed to notify the Plaintiff raises questions about the Defendants' own conduct in facilitating the progression of the case.
15. Regarding the Defendant’s contention that the decree, which is the subject of this suit, has been satisfied by virtue of the Plaintiff’s committal to civil jail pursuant to Section 43 of the Civil Procedure Act, this Court finds such an argument to be a misapprehension of the law.
16. Section 43 does not stipulate that committal to civil jail operates as satisfaction of a decree. To the contrary, Section 42(2) of the Civil Procedure Act provides in unambiguous terms that “a judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be rearrested under the decree in execution of which he was detained in prison.”
17. It is therefore clear that civil jail is a mode of enforcing, but not extinguishing, a monetary decree. The underlying debt remains due and payable, unless settled in accordance with the decree or by agreement of the parties.
18. In the circumstances, it is hereby found that while there was a prolonged delay in prosecuting the suit and non-compliance with the Case Management Order of 17th May 2021, the Plaintiff has provided a plausible explanation for the delay, warranting the exercise of judicial discretion against outright dismissal for want of prosecution.
19. Accordingly, it is hereby ordered that:
i. The Notice to Show Cause issued herein on 12th May 2025 is hereby discharged.
ii. The Plaintiff shall, within thirty (30) days from the date of this Ruling, take concrete steps to comply with the Case Management Order of 17th May 2021, including but not limited to filing a Reply to Defence and initiating Case Management proceedings before the Deputy Registrar.
iii. In the event of failure to comply with Order (i) above, the suit shall stand dismissed without further reference to the Court.
iv. The costs of this application for dismissal for want of prosecution shall be borne by the Plaintiff.
20. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
31ST DAY OF JULY 2025
ADO MOSES
JUDGE
In the presence of: -
Moses……….C/A
1. Before this Court is a Notice to Show Cause (NTSC) issued suo moto by this Court on whether the Plaintiff’s suit should be dismissed for want of prosecution pursuant to the Court’s inherent jurisdiction and Order 17 Rule 2(1) of the Civil Procedure Rules, 2010.
2. The Plaintiff filed written submissions dated 6th June 2024 in response to the NTSC and urged this Court not to dismiss the suit. The Defendants, on the other hand, also filed submissions, urging the Court to dismiss the suit on grounds of delay, non-compliance with the Court’s directions, and satisfaction of the decree through civil jail committal.
3. The background of this matter is that the Plaintiff instituted this suit vide a Plaint dated 30th August 2017 seeking judgment for Kshs. 34,000,000 based on a consent recorded before Hon. Justice Kimaru in Nairobi High Court Misc. Application No. 441 of 2014, whereby the Defendants are said to have admitted liability.
4. The Plaintiff obtained ex parte judgment on 15th November 2017, which he sought to execute through committal of the Defendants to civil jail. The Defendants subsequently filed applications to set aside the ex parte judgment. The Court (Hon. Lady Justice Margaret Muigai) allowed those applications through a Ruling delivered on 17th May 2021 and directed parties to conduct Case Management within 60 days.
5. The Plaintiff did not comply with the Case Management directive, nor did he take further steps to prosecute the suit until the issuance of the present Notice to Show Cause.
6. The matter proceeded by way of written submissions. The Plaintiff in his submissions dated 6th June 2024, contends that the delay was neither intentional nor inordinate, but arose from factors beyond his control, including: Lack of notification of the ruling setting aside the judgment; A serious fallout with his former advocates, who allegedly withheld the court file and colluded with the Defendants; and difficulty in accessing and reconstructing his case documents.
7. The Plaintiff therefore urged the Court to consider that he has now reconstructed the file and is ready and willing to proceed with the matter. He invokes Article 159 of the Constitution and the principles of substantive justice, citing case law including Fran Investments Ltd v G4S Security Services Ltd [2015] eKLR and Ivita v Kyumbu (1984) KLR 441.
8. The Defendants, on the other hand, filed their joint submissions dated 22nd May 2025 and urged the Court to dismiss the suit for want of prosecution. The Defendants submitted that the Plaintiff has been indolent and has not complied with the Court’s clear directive to conduct Case Management within 60 days from 17th May 2021, and that no review or extension of the timelines was sought by the Plaintiff.
9. It was further the Defendant’s position that the suit is therefore “spent” and should be dismissed as a matter of law. That, in any event, the decree the subject of this suit, was satisfied when the Defendants served the full six-month civil jail committal period.
10. The Defendants submit that justice cannot be served where a Plaintiff sleeps on his rights and resurfaces only after a procedural notice is issued by the Court, and that the Plaintiff has failed to disclose any cogent or credible explanation for the delay.
Analysis and Determination
11. Based on the competing submissions, the only issue for determination is whether the Plaintiff has shown sufficient cause against the dismissal of the suit for want of prosecution.
12. The principles governing dismissal for want of prosecution are well settled. In Ivita v Kyumbu (1984) KLR 441, the Court held:
“The test is whether the delay is prolonged and inexcusable; and if it is, whether justice can still be done despite the delay.”
13. While the delay from May 2021 to May 2024 is substantial, the Plaintiff's explanation, particularly concerning the alleged non-notification of the ruling and the detailed account of the advocate-client dispute (including DCI involvement and file retention), provides a more concrete and potentially excusable reason for the inaction than a mere "casual" response.
14. The claim that the Defendants, who were aware of the ruling, failed to notify the Plaintiff raises questions about the Defendants' own conduct in facilitating the progression of the case.
15. Regarding the Defendant’s contention that the decree, which is the subject of this suit, has been satisfied by virtue of the Plaintiff’s committal to civil jail pursuant to Section 43 of the Civil Procedure Act, this Court finds such an argument to be a misapprehension of the law.
16. Section 43 does not stipulate that committal to civil jail operates as satisfaction of a decree. To the contrary, Section 42(2) of the Civil Procedure Act provides in unambiguous terms that “a judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be rearrested under the decree in execution of which he was detained in prison.”
17. It is therefore clear that civil jail is a mode of enforcing, but not extinguishing, a monetary decree. The underlying debt remains due and payable, unless settled in accordance with the decree or by agreement of the parties.
18. In the circumstances, it is hereby found that while there was a prolonged delay in prosecuting the suit and non-compliance with the Case Management Order of 17th May 2021, the Plaintiff has provided a plausible explanation for the delay, warranting the exercise of judicial discretion against outright dismissal for want of prosecution.
19. Accordingly, it is hereby ordered that:
i. The Notice to Show Cause issued herein on 12th May 2025 is hereby discharged.
ii. The Plaintiff shall, within thirty (30) days from the date of this Ruling, take concrete steps to comply with the Case Management Order of 17th May 2021, including but not limited to filing a Reply to Defence and initiating Case Management proceedings before the Deputy Registrar.
iii. In the event of failure to comply with Order (i) above, the suit shall stand dismissed without further reference to the Court.
iv. The costs of this application for dismissal for want of prosecution shall be borne by the Plaintiff.
20. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
31ST DAY OF JULY 2025
ADO MOSES
JUDGE
In the presence of: -
Moses……….C/A