[2019] KEHC 11805 (KLR)
The court found that although the defendant was not served with summons, its active participation in all proceedings demonstrated full awareness and notice of the suit, thereby curing any defect in service. The court further noted that the suit was ripe for hearing and, rather than dismissing it for want of...
Source-derived case information.
- Citation
- [2019] KEHC 11805 (KLR)
- Parties
- Plaintiff: Bethlehem Engineering & Construction Co. Limited (In Receivership); Defendant: Mara Mining Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 590 of 2014
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; directions issued for hearing within 90 days, failing which it stands dismissed.
- Legal Topics
- Dismissal for Want of Prosecution, Service of Summons, Case Management, Directions by Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bethlehem Engineering & Construction Co. Limited (In Receivership)
Plaintiff
Mara Mining Company Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether failure to serve summons on the defendant warrants striking out the suit.
- 3 Whether the defendant's participation in proceedings cures any defect in service of summons.
Ratio Decidendi
The court found that although the defendant was not served with summons, its active participation in all proceedings demonstrated full awareness and notice of the suit, thereby curing any defect in service. The court further noted that the suit was ripe for hearing and, rather than dismissing it for want of prosecution, directed that it be set down for hearing within 90 days. Failure to do so would result in automatic dismissal. This approach balances the need for expeditious disposal of cases with the interests of justice, ensuring that procedural technicalities do not override substantive justice where parties have participated in the proceedings.
Court Disposition
Suit not dismissed; directions issued for hearing within 90 days, failing which it stands dismissed.
Orders
- The suit to be set down for hearing within 90 days from the date of this ruling.
- Failure to set down the suit for hearing within 90 days will result in automatic dismissal with no further reference to the plaintiff.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL SUIT NO.590 OF 2014
BETHLEHEM ENGINEERING &
CONSTRUCTION CO. LIMITED (IN RECEIVERSHIP).......PLAINTIFF
VERSUS
MARA MINING COMPANY LIMITED.................................DEFENDANT
RULING
This matter came up for a Notice to show cause. The Plaintiff opposed the dismissal of the suit through its Replying Affidavit dated 3rd March 2015the Defendant supported the dismissal of the suit.
I note that on 27th November 2016 Hon Justice Farah Amin delivered a Ruling giving certain directions in the matter. From that time no action was taken on the file.
The Defendant has submitted that the suit ought to be struck out “in limine” as no summons were ever served upon them. However I note that notwithstanding the failure to serve summons the Defendant has actively participated in all proceedings in this suit proving that they were fully aware of and had notice of the suit against them.
It would appear that the suit is ripe for hearing. Accordingly I direct that the same be set down for hearing within 90 days hereof failing which it will stand dismissed with no further reference to the Plaintiff. In order to expedite the matter parties to appear before the Hon Deputy Registrar for Case Management Conference on 9/9/2019.
Dated in Nairobi this …26TH …..day of August 2019.
……………………………..
Justice Maureen A. Odero
Mr. Mutua h/b for Mr. Koyoo
Ms Agwala h/b Mr. Issa for Defendant
……………………………..
Justice Maureen A. Odero