[2019] KEHC 8678 (KLR)
The court found that the plaintiff had filed a request for judgment on 5th August, 2016, which constituted a step taken in the proceedings within the meaning of Order 17 Rule 2(1) of the Civil Procedure Rules. Since the 3rd defendant's application to dismiss the suit for want of prosecution was filed only about 25...
Source-derived case information.
- Citation
- [2019] KEHC 8678 (KLR)
- Parties
- Plaintiff: Bidco Oil Refineries Limited; Defendant: Ahmed Abdikadir Ahmed t/a Sakina Distributors; Defendant: Muturi Kennedy Mwangi; Defendant: Nkab Pharis Kirimi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 292 of 2014
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Order 17 Rule 2, Steps in Proceedings, Abuse of Process
- 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
Bidco Oil Refineries Limited
Plaintiff
Ahmed Abdikadir Ahmed t/a Sakina Distributors
Defendant
Muturi Kennedy Mwangi
Defendant
Nkab Pharis Kirimi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff took any step in the proceedings within the meaning of Order 17 Rule 2(1) of the Civil Procedure Rules.
- 2 Whether the 3rd defendant's application to dismiss the suit for want of prosecution was premature.
Ratio Decidendi
The court found that the plaintiff had filed a request for judgment on 5th August, 2016, which constituted a step taken in the proceedings within the meaning of Order 17 Rule 2(1) of the Civil Procedure Rules. Since the 3rd defendant's application to dismiss the suit for want of prosecution was filed only about 25 days after this step, the statutory condition precedent of one year of inactivity had not been met. Therefore, the application was premature and did not warrant consideration of its merits. The court dismissed the application with costs to the plaintiff.
Court Disposition
application dismissed
Orders
- The 3rd defendant's application to dismiss the suit for want of prosecution is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 292 OF 2014
BIDCO OIL REFINERIES LIMITED ...............................PLAINTIFF
VERSUS
AHMED ABDIKADIR AHMED
T/A SAKINA DISTIBUTORS.....................................1ST DEFENDANT
MUTURI KENNEDY MWANGI..............................2ND DEFENDANT
NKABU PHARIS KIRIMI .......................................3RD DEFENDANT
RULING
This ruling relates to an application filed by the 3rd defendant by way of Notice of Motion under Order 17 Rule 2 (1) and (3) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking an Order that the plaintiff’s suit be dismissed for want of prosecution.
The grounds set out on the face of the application allege that no steps have been taken to list matter for hearing for over two years to the prejudice of the 3rd defendant. This is said to be an abuse of the court process.
There is a supporting affidavit sworn by the advocate for the 3rd defendant. There is another application filed by the plaintiff dated 14th December and filed on 19th December, 2016 seeking to strike out the defence of the 3rd defendant and enter judgment in his favour. The submissions on record relate to the application by the 3rd defendant to strike out the plaintiff’s suit.
I have gone through the record to see the application of Order 17 rule 2 (1) and (3) of the Civil Procedure Rules which have been cited by the 3rd defendant. The wording of rule 2 (1) are instructive. For purposes of record the opening sentence reads as follows,
“In any suit in which no application has been made or step taken by either party for one year……..”.
The foregoing is the condition precedent before application under the said provisions can be filled. Before the application by the 3rd defendant was filed on 1st of September, the plaintiff filed a request for judgment dated 5th August, 2016 against the 1st and 2nd defendants. My interpretation of the applicable provisions is that, that was an “application” or “step taken by” the plaintiff under rule 2(1) aforesaid. The application by the 3RD defendant was filed 25 days or thereabout from the step taken by the plaintiff.
The record shows that the minute for the Deputy Registrar’s action following the request for judgment by the plaintiff was made on 16th August, 2016. The Deputy Registrar signed the judgment on 17th August, 2016.
The application by the 3rd defendant to strike out the plaintiff’s suit is premature and does not call for the court to address the merits or otherwise as set out in the several decided cases cited by the parties. The application is therefore dismissed with costs to the plaintiff.
Dated, signed and delivered at Nairobi this 14th Day of March, 2019.
A.MBOGHOLI MSAGHA
JUDGE