[2015] KEHC 124 (KLR)
The court found that the Plaintiff was not served with a notice of intention to dismiss the suit for want of prosecution, as required by the Civil Procedure Rules. The absence of such notice is a fundamental procedural defect that invalidates the dismissal order. The court emphasized that compliance with the notice...
Source-derived case information.
- Citation
- [2015] KEHC 124 (KLR)
- Parties
- Plaintiff: Bubal Corporation; Defendant: SOS-Kinderdorf International
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 792 of 2003
- Procedural Posture
- Civil Case / Application for Review and Reinstatement After Dismissal for Want of Prosecution
- Outcome
- Application allowed; suit reinstated.
- Judges
- DO Ogembo
- Legal Topics
- Dismissal for Want of Prosecution, Notice Requirement, Reinstatement of Suit
- 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
Bubal Corporation
Plaintiff
SOS-Kinderdorf International
Defendant
Procedural Posture
Civil Case / Application for Review and Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the Plaintiff was given proper notice of the court's intention to dismiss the suit for want of prosecution.
- 2 Whether failure to serve such notice invalidates the dismissal order.
Ratio Decidendi
The court found that the Plaintiff was not served with a notice of intention to dismiss the suit for want of prosecution, as required by the Civil Procedure Rules. The absence of such notice is a fundamental procedural defect that invalidates the dismissal order. The court emphasized that compliance with the notice requirement is mandatory, regardless of any previous non-compliance by the Plaintiff with other court orders. Since neither party received the requisite notice, the dismissal could not stand, and the application for reinstatement was allowed.
Court Disposition
Application allowed; suit reinstated.
Orders
- The application dated 5th October 2015 is allowed as prayed.
- The orders of dismissal issued on 16th June 2015 and all consequential orders are set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 792 OF 2003
BUBAL CORPORATION (suing as a firm)……PLAINTIFF
VERSUS
SOS-KINDERDORF INTERNATIONAL….....……DEFENDANT
J U D G E M E N T
1. By a Notice of Motion dated 5th October 2015 the Plaintiff seeks the following orders:-
That this Honorable court be pleased to review and/or set side and/or vacate the orders issued on 16th June 20115 and all consequential orders.
That this Honorable court be pleased to discharge the Orders issued on 16th June 201 and all consequential orders.
2. The application is premised on the ground set out therein and by affidavit sworn by Cohen Amanya on 5th October 2015.
3. The brief history of the application is that on 6th June 2015 this court, under Order 17 Rule R of the civil Procedure Rules dismissed the suit herein, causing the Plaintiff to bring this application for its reinstatement, citing lack of notice before the said dismissed was effected.
4. The Defendant has in opposition to the application, filed Grounds of Opposition on 30th October 2015 stating that the application is an abuse of the court process and that the Plaintiff had failed to comply with previous court orders of 15th December 2006 and 27th July 2014, and that the Plaintiff’s dilatoriness shown herein is unconscionable.
5. I have considered the application and the oral submission of counsel. For me the only issue for determination is whether or not the Plaintiff was given notice that the suit would be dismissed on 167th June 2015 for want of prosecution. In my view, it does not matter that in previous occasions the Plaintiff had failed to comply with certain orders of this court. The truth of the matter, which is also the law, is that any party whose suit is to be dismissed for want o prosecution must properly be notified of the same. Failure to issue a notice of the intention to dismiss is a serious and fundamental flow which must be rectified by the court. I have carefully perused the court file, and there is no evidence that the Plaintiff was served with such a notice by the court. The Plaintiff’s counsel, Mr. Cohen also submitted that they were not served with such a notice. Indeed, even the Defendant’s counsel Mr. Jelle admitted that the Defendant did not receive the Notice that the suit would be dismissed for want of prosecution.
6. This court having as a matter of fact ascertained that indeed the Plaintiff was not given the said notice, the court has no business looking for other grounds upon which this application can be dismissed. On the gourd of the failure to give the said notice for intended dismissal of this suit, the application must succeed.
7. In the upshot, the application dated 5th October 2015 by the Plaintiffs is allowed as prayed with costs in the cause.
Orders accordingly.
READ, DELIVERED AND DATED AT NAIROBI THIS 23RD DAY OF NOVEMBER 2015
E. K. O. OGOLA
JUDGE
PRESENT:
Mr. Cohen for thePlaintiff
No appearance for theDefendant
Teresia – Court Clerk