[2013] KEHC 2378 (KLR)
The court found that the plaintiff had failed to comply with two separate court orders requiring the furnishing of security for costs, despite being granted an extension and having an application for stay dismissed. The respondent's explanations for the delay were not sufficient to excuse non-compliance,...
Source-derived case information.
- Citation
- [2013] KEHC 2378 (KLR)
- Parties
- Plaintiff: Ahmed Mohamed Ahmed; Defendant: Ahmed Mohideen; Defendant: Kenya United Steel Company 2006 Ltd.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 470 of 2011
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss Suit for Non Compliance With Security for Costs Order
- Outcome
- Application to dismiss the suit allowed with costs.
- Legal Topics
- Security for Costs, Dismissal for Non Compliance, Overriding Objective, Court Orders, Delay in Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Mohamed Ahmed
Plaintiff
Ahmed Mohideen
Defendant
Kenya United Steel Company 2006 Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss Suit for Non Compliance With Security for Costs Order
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for failure to comply with a court order to furnish security for costs.
- 2 Whether the delay in compliance was excusable under the Civil Procedure Rules and Article 159 of the Constitution.
Ratio Decidendi
The court found that the plaintiff had failed to comply with two separate court orders requiring the furnishing of security for costs, despite being granted an extension and having an application for stay dismissed. The respondent's explanations for the delay were not sufficient to excuse non-compliance, particularly given the mandatory duty imposed by Section 1A(3) of the Civil Procedure Act to assist the court in furthering the overriding objective. The court emphasized that litigants who subvert the aims of the overriding objective cannot seek its protection. The persistent non-compliance with court orders justified the dismissal of the suit, and the court allowed the application as...
Court Disposition
Application to dismiss the suit allowed with costs.
Orders
- The Notice of Motion dated 1st February 2013 is allowed as prayed with costs.
- The plaintiff's suit is dismissed for non-compliance with the order to furnish security for costs.
Full Case Text
Judgment text and source record
30 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
HIGH COURT CIVIL CASE NO. 470 OF 2011
AHMED MOHAMED AHMED .............................................. PLAINTIFF
-VERSUS-
AHMED MOHIDEEN ...................................................1ST DEFENDANT
KENYA UNITED STEEL COMPANY 2006 LTD. ...... 2ND DEFENDANT
RULING
[1] The applicant in this case files this application by way of Notice of Motion and prays that the suit filed by the plaintiff against the defendants be dismissed with costs.
The grounds of his application is that the defendant was ordered by the court to furnish security for costs to the second defendant in the sum of Kshs. 1,000,000. The amount was to be placed in a joint interest earning account in a reputable bank in the names of counsels for the plaintiff and the second defendant within 30 days of that order.
The plaintiff did not comply with that order. He instead filed an application seeking to stay the order pending appeal. The application for stay came before the court on 10th December 2012. The application was dismissed.
The applicant was given a further 30 days with effect from 10th December 2012 to comply with the court order. He did not comply with the second order. The applicant thereupon filed this application to have the suit dismissed.
[2] When this matter came for hearing for the application to dismiss the suit Mr. Gichuki Learned Counsel for the applicant applied for the suit to be dismissed for non compliance with court order.
Mr. Khatib learned counsel for the respondent conceded there was delay. He argued that the delay was caused by the fact that this was a representative suit that plaintiffs and beneficiaries were to be brought on board. He argued that they were ready with the deposit but the applicant served them with th application to dismiss the suit on 14th February, 2013. He argued that the delay was 25 days. Further that if you took the period between the 21st December and 13th of January, when time does not run according to Civil Procedure Rules, the delay was only 3 days. He argued that the delay was not inordinate and that the Court should not rely on technicalities. He cited Article 159 of the Constitution. He argued that no prejudice shall be suffered by the applicants.
[3] Sec.1A (3) of the Civil Procedure Rules reads;
"A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the act and, to that effect,to participatein the processes of the Court and to comply with the directions and orders of the Court."
This section enjoins party to civil proceedings to assist the court to further the overriding objective of the Court. It mandates the parties to comply with the directions and orders of the court. The respondent has admitted having failed to comply with the orders of this Court on two separate occasions. He is in breach of Section 1A(3) aforesaid. The respondent is in breach of the oxygen principle1. The Court of Appeal has held that litigants and their advocates must know that 'they have a powerful ally where they are advancing its (O2 principle) aims and a powerful adversary where they are bent on subverting its aims.'2The Court of Appeal went further to state.
"It is a requirement of O2 principal that the exercise of any power under the act or rule must be exercised in line with its principal aims. Similarly the interpretation of any provisions in the Act(s) and rules has to be O2 complaint"
The respondent has continually subverted the overriding objective of the Civil Procedure Rules. He cannot therefore be helped by the same rules he has flaunted.
The Notice of Motion dated 1st February 2013 is allowed as prayed with costs.
Dated and delivered in open Court at Mombasa this 23rd day of August, 2013.
S.N. MUKUNYA
JUDGE
In the presence of:
Khatib for the plaintiff'
P. Buti for the respondents
1 See Hunker Trading Company Ltd and Elf Oil Kenya Ltd Civil Appl. 6 of 20110 and HCC. No. 1785 of 2010
2 See Hunker Case page 5 para 4