[2018] KEHC 10117 (KLR)
The court found that the plaintiff had not taken any steps in the matter for more than one year, satisfying the threshold for dismissal for want of prosecution under Order 17 Rule 1(2) of the Civil Procedure Rules. Additionally, the plaintiff failed to file summons as required by Order 5 Rule 1(3), making the plaint...
Source-derived case information.
- Citation
- [2018] KEHC 10117 (KLR)
- Parties
- Plaintiff: Aberdare Steel & Hardware Limited; Defendant: Co-operative Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 92 of 2016
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution and irregularity; costs awarded to defendant
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Statutory Power of Sale, Injunctive Relief, Irregular Plaint, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aberdare Steel & Hardware Limited
Plaintiff
Co-operative Bank of Kenya
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 under Order 17 Rule 1(2) of the Civil Procedure Rules.
- 2 Whether the plaint is irregular for failure to file summons as required by Order 5 Rule 1(3) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the plaintiff had not taken any steps in the matter for more than one year, satisfying the threshold for dismissal for want of prosecution under Order 17 Rule 1(2) of the Civil Procedure Rules. Additionally, the plaintiff failed to file summons as required by Order 5 Rule 1(3), making the plaint irregular. The court held that these procedural failures warranted dismissal of the suit both for want of prosecution and for irregularity. The defendant, having succeeded in its application, was awarded costs of the suit and the application.
Court Disposition
suit dismissed for want of prosecution and irregularity; costs awarded to defendant
Orders
- The suit is dismissed for want of prosecution and for being irregular and in contravention of Order 5 Rule 1(3) of the Civil Procedure Rules.
- The defendant is awarded costs of the suit and the Notice of Motion dated 4th July, 2017.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 92 OF 2016
ABERDARE STEEL & HARDWARE LIMITED.......................................PLAINTIFF
- VERSUS -
CO-OPERATIVE BANK OF KENYA.......................................................DEFENDANT
RULING
1. The plaintiff filed this suit on 24th March, 2016 seeking injunction to restrain the defendant from exercising its statutory power of sale over the plaintiff’s property LR No. 14870/263 Nairobi. The plaintiff simulteneously whilst filing the plaint also filed a Notice of Motion application dated 23rd March, 2016. That Notice of Motion was dismissed on 25th April, 2016 for non attendance of the plaintiff’s learned counsel.
2. The defendant has moved this court by a notice of motion application dated 4th July 2017 seeking dismissal of this suit for want of prosecution.
3. Although the plaintiff was served with the notice of motion through its learned counsel Sospeter & Co. Advocates, the said counsel failed to attend court on 11th July, 2018 when the matter was entertained. In effect the notice of motion was not opposed by the plaintiff.
4. Order 17 Rule 1 (2) of the Civil Procedure Rules (the rules) is in this case satisfied because it is now more than one year since the plaintiff took any step in this matter. Accordingly, this suit will be dismissed for want of prosecution as provided under that Rule.
5. It is also important to note that the plaintiff todate has not filed the sumons as required under Order 5 Rule 1 (3) of the Rules. That Rule provides that summons shall accompany a copy of the plaint.
6. The plaint in this matter, bearing in mind Order 5 Rule 1 (3) of the rules, is irregular and should be struck out.
7. In the end, this suit is dismissed for want of prosecution and for being irregular and incontravention of Order 5 Rule 1 (3) of the rules. The defendant is awarded costs of the suit and cost of the Notice of Motion dated 4th July, 2017.
DATED, SIGNED and DELIVERED at NAIROBI this 30th day of July 2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant....................Sophie
........................................... for the Plaintiff
........................................... for the Defendant