[2013] KEHC 4953 (KLR)
The court found that although there was evidence on record that a notice under Order 17 Rule 2 was issued, there was no evidence that the plaintiff or its advocates actually received the notice. Given that the parties were engaged in negotiations to settle the matter amicably and the defendant did not oppose the...
Source-derived case information.
- Citation
- [2013] KEHC 4953 (KLR)
- Parties
- Plaintiff: Caledonia Supermarket Limited; Defendant: The Kenya National Examinations Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 447 of 1998
- Procedural Posture
- Notice of Motion / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit reinstated.
- Judges
- DO Ogembo
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Order 17 Rule 2, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caledonia Supermarket Limited
Plaintiff
The Kenya National Examinations Council
Defendant
Procedural Posture
Notice of Motion / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated.
- 2 Whether proper notice under Order 17 Rule 2 was served on the plaintiff or its advocates.
Ratio Decidendi
The court found that although there was evidence on record that a notice under Order 17 Rule 2 was issued, there was no evidence that the plaintiff or its advocates actually received the notice. Given that the parties were engaged in negotiations to settle the matter amicably and the defendant did not oppose the application, the court exercised its discretion to set aside the dismissal and reinstate the suit. The overriding consideration was the interest of justice and the parties' intention to resolve the dispute without further litigation.
Court Disposition
Application allowed; suit reinstated.
Orders
- The order dismissing the suit made on 27th January 2012 is set aside.
- The suit is reinstated.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Milimani Commercial Courts)
Civil Case 447 of 1998 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
CALEDONIA SUPERMARKET LIMITED..........................................PLAINTIFF
VERSUS
THE KENYA NATIONAL EXAMINAITONS COUNCIL................DEFENDANT
R U L I N G
1. Before the court is a NoticeofMotion dated 10th December 2012 seeking as the main order that the order dismissing the suit made on 27th January 2012 be set aside and the suit be reinstated.
2. The application is based on the grounds that:-
1. The Court of Appeal in Civil Appeal Number 184 of 1999 has decided the question of liability and the only matter which was pending was the assessment of damages and the parties were negotiating to reach an amicable settlement out of court and the negotiations were still in progress when the suit was dismissed on 27/01/2012.
2. No Notice as required by Order 17 Rule 2 (1) was ever given by the court to the Plaintiff’s advocate.
3. The application is supported by affidavit of MADAN GEOPAL SHARMA dated 10th December 2012 with its annextures.
4. The application is not opposed. It was served and an affidavit of service filed in court.
5. Records show that on 27/1/2012 the suit was dismissed for want of prosecution by Justice Mabeya.
6. While there is evidence on record that a notice under Order 17 Rule 2 was issued, there is no evidence that the Plaintiff or its advocates received the same.
7. As it is indicated to me that the parties hereto wish to settle this matter amicably, I am inclined to grant the application.
8. The Notice of Motion application dated 10th December 2012 is allowed with costs in the cause.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBITHIS 26TH DAY OF FEBRUARY 2013
E. K. O. OGOLA
JUDGE
Present:
M.G. Sharmer for Plaintiff
N/A Defendant
Teresia – court clerk