[2007] KEHC 2738 (KLR)
The court found that although the Defendant had served the application and hearing notice by registered post, this constituted substituted service, which requires prior leave of the court. The record did not show that such leave was sought or obtained, rendering the service invalid. As a result, the proceedings of...
Source-derived case information.
- Citation
- [2007] KEHC 2738 (KLR)
- Parties
- Plaintiff: Apricot Apple Promotion & Systems Limited; Defendant: Stanbic Bank Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 3016 of 1997
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- proceedings set aside; application to be heard afresh upon proper service
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Service of Process, Substituted Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Apricot Apple Promotion & Systems Limited
Plaintiff
Stanbic Bank Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the application and hearing notice were properly served on the Plaintiff as required by law.
- 2 Whether the proceedings of 10th May 2007 should be set aside due to improper service.
- 3 Whether the suit should be dismissed for want of prosecution in the absence of proper service.
Ratio Decidendi
The court found that although the Defendant had served the application and hearing notice by registered post, this constituted substituted service, which requires prior leave of the court. The record did not show that such leave was sought or obtained, rendering the service invalid. As a result, the proceedings of 10th May 2007, during which the application was heard in the Plaintiff's absence, were set aside. The court emphasized that dismissing a suit unheard is a drastic measure that should not be taken lightly, especially where due process regarding service has not been observed. The application for dismissal was not determined on its merits but was to be heard afresh upon proper...
Court Disposition
proceedings set aside; application to be heard afresh upon proper service
Orders
- The proceedings of 10th May 2007 are set aside.
- The application for dismissal is to be heard afresh upon proper service on the Plaintiff.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 3016 of 1997
APRICOT APPLE PROMOTION & SYSTEMS LIMITED…....PLANTIFF
V E R S U S
STANBIC BANK LTD ………………….....…………......…..DEFENDANT
R U L I N G
This is an application by the Defendant (notice of motion dated 16th May, 2005) for dismissal of the Plaintiff’s suit for want of prosecution. It is brought under Order 16, rule 5 (a) and (c) of the Civil Procedure Rules. Those two rules prescribe respectively that if, within three months after the close of pleadings or the removal of the suit from the hearing list, the plaintiff, or the court on its own motion on notice to the parties, does not set down the suit for hearing, the defendant may either set the suit down for hearing or apply for its dismissal. There is a supporting affidavit sworn by the Defendant’s advocate, one COLLINS NAMACHANJA.
At the hearing of the application on 10th of May 2007 there was no appearance for the Plaintiff. I was then satisfied that both the application and hearing notice had been duly served upon the Plaintiff, and I permitted the application to be prosecuted. However, upon checking the record more closely when preparing this ruling, I have noted that service was effected on both occasions by registered post. This was substituted service, necessitated by the fact that the Plaintiff’s advocates could not be traced. Being substituted service, leave of the court ought to have been sought first in order to validate the service. The record does not show that such leave was sought or obtained. In the circumstances there was no good service of both the application and hearing notice.
In the interests of justice, I will set aside the proceedings of 10th May 2007 to enable the application to be heard afresh upon proper service on the Plaintiff. This is necessary because dismissal of a litigant’s suit unheard is a drastic step that should not be lightly taken. There will be no order as to costs.
Orders accordingly.
DATED AT NAIROBI THIS 11TH DAY OF JUNE 2007
H. P. G. WAWERU
JUDGE