[2017] KEHC 1235 (KLR)
The court found that there was no evidence that the plaintiff was properly served with the notice to show cause before the suit was dismissed for want of prosecution. Although the notice was posted on the internet, it was possible that none of the parties saw it. The court accepted the plaintiff's plea of...
Source-derived case information.
- Citation
- [2017] KEHC 1235 (KLR)
- Parties
- Plaintiff: Benard O. Otieno; Defendant: Benson Mbuthia Njiru t/a B. N. Mbuthia & Company Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 503 of 2011
- Procedural Posture
- Civil Suit / Ruling on Application to Review and Set Aside Dismissal for Want of Prosecution
- Outcome
- motion allowed; dismissal order reviewed and set aside
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Review of Court Orders, Service of Notice, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard O. Otieno
Plaintiff
Benson Mbuthia Njiru t/a B. N. Mbuthia & Company Advocates
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Review and Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution should be reviewed and set aside.
- 2 Whether proper notice to show cause was served on the parties before dismissal.
- 3 Whether the dismissal was based on a procedural error regarding the applicable provisions.
Ratio Decidendi
The court found that there was no evidence that the plaintiff was properly served with the notice to show cause before the suit was dismissed for want of prosecution. Although the notice was posted on the internet, it was possible that none of the parties saw it. The court accepted the plaintiff's plea of non-service and determined that the error in citing provisions relating to appeals was not fatal to the proceedings. The court was persuaded that the dismissal order should be reviewed and set aside to allow the suit to proceed on its merits.
Court Disposition
motion allowed; dismissal order reviewed and set aside
Orders
- The order dismissing the suit for want of prosecution is reviewed and set aside.
- The suit is reinstated for hearing.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 503 OF 2011
BENARD O. OTIENO.....................................................PLAINTIFF
- V E R S U S –
BENSON MBUTHIA NJIRU T/A
B. N. MBUTHIA & COMPANY ADVOCATES..........DEFENDANT
RULING
1. On 9th June 2016, Hon. Mr. Justice Mrima dismissed this suit for want of prosecution. Benard O. Otieno, the plaintiff/ applicant has now taken out the motion dated 17. 2.2017 in which he sought for the dismissal order to be reviewed and set aside. The motion is supported by the affidavit of Jackson Muema Kisinga. When served with the motion, Benson Mbuthia Njiru swore a replying affidavit to oppose the motion. When the motion came up for interpartes hearing learned counsels recorded a consent order to have the same disposed of by written submissions.
2. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the applications. I have further considered the rival submissions. It is the submission of the plaintiff/applicant that no notice was served upon the parties of the notice to show cause why the suit should not be dismissed for want of prosecution.
3. It is further argued that the learned judge dismissed the suit on the mistaken impression that the matter was an appeal and on the basis that no steps had been taken to make the suit ready for trial.
4. The respondent on the other hand was of the view that the motion lacks merit. The respondent submitted that the notices to show cause were posted in the internet and all parties were aware. The respondent further pointed out that the motion was filed 8 months after the dismissal was made. The respondent also attacked the affidavit of Jackson Kisinga filed in support of the motion claiming that the same was filed without the authority of the client.
5. It is clear from the record that no party appeared before the court when the notice to show cause came up for hearing. The plaintiff’s advocate has stated that he had no knowledge of the notice. It is not in dispute that the notice to show cause was posted via the internet. It is possible that none of the parties saw the notice and I will therefore give the plaintiff the benefit of doubt by accepting his plea that he was not served. Another important ground put forward is that the suit was dismissed under the provisions relating to appeals. I have examined the record and it is apparent that both the provisions of Orders 17 and 42 of the Civil Procedure Rules were cited. I do not think the error is fatal.
6. The plaintiff/respondent has also pointed out that the honourable judge did not notice that all the preliminary procedures necessary for a suit to be ready for hearing had been fulfilled.
7. Having considered the arguments of both sides, I am persuaded by the submissions of the plaintiff that the dismissal order should be reviewed and set aside.
8. Consequently the motion is allowed as prayed.
Dated, Signed and Delivered in open court this 10th day of November, 2017.
J. K. SERGON
JUDGE
In the presence of:
....................................for the Plaintiff
....................................for the Defendant