[2018] KEHC 10248 (KLR)
The court found that the only evidence linking Concord Insurance Company Limited to the present claim was a letter from the defendant's advocate, which was insufficient to justify keeping the matter in abeyance. The plaintiff, however, had shown cause why the suit should not be dismissed for want of prosecution. The...
Source-derived case information.
- Citation
- [2018] KEHC 10248 (KLR)
- Parties
- Plaintiff: Comply Industries; Defendant: P. N. Mashru Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 311 of 2012
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Plaintiff has shown cause; suit not dismissed. Defendant to provide proof of insurance liability or case to proceed to hearing.
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Stay of Proceedings, Insurance Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Comply Industries
Plaintiff
P. N. Mashru Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the plaintiff has shown sufficient cause to prevent dismissal of the suit for want of prosecution.
- 2 Whether there is adequate proof that Concord Insurance Company Limited is liable in this matter, justifying a stay of proceedings.
Ratio Decidendi
The court found that the only evidence linking Concord Insurance Company Limited to the present claim was a letter from the defendant's advocate, which was insufficient to justify keeping the matter in abeyance. The plaintiff, however, had shown cause why the suit should not be dismissed for want of prosecution. The court ordered the defendant to provide documentary evidence that Concord Insurance may be liable for the claim; failing which, the case would proceed to hearing. The court emphasized the need for concrete proof before granting a stay based on third-party insurance liability.
Court Disposition
Plaintiff has shown cause; suit not dismissed. Defendant to provide proof of insurance liability or case to proceed to hearing.
Orders
- Plaintiff has shown cause why the suit should not be dismissed for want of prosecution.
- Defendant to provide documentary evidence that Concord Insurance Company Limited may be liable for the claim on a date to be fixed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 311 OF 2012
COMPLY INDUSTRIES...................................................PLAINTIFF
- VERSUS –
P. N. MASHRU LIMITED........................................... DEFENDANT
RULING
1. This suit was filed on 17th May 2012. The plaintiff’s claim relates the contract for the defendant to transport, for the plaintiff, a new thermal oil heater from Mombasa Port to the plaintiff’s premises in Nakuru. It is alleged in the plaintiff’s claim that the heater was damaged during that transportation.
2. The plaintiff was ordered by a Notice dated 3rd May 2018 to show cause why this suit should not be dismissed for want of prosecution.
3. The plaintiff showed cause by an affidavit sworn on 11th June 2018 of John Mbaluto, the plaintiff’s advocate. By that affidavit the advocate deponed that the defendant, in respect to the present claim, was insured by Concord Insurance Company Limited. That Justice Mabeya, in HCCC No. 88 of 2013, on 14th March 2013 ordered stay of proceedings of all court matters subsisting against Concord Insurance. The order also granted stay to all current and pending matters of Concord policy holders, for which matter Concord Insurance may become liable. The extracted court order issued by Justice Mabeya was annexed to the affidavit.
4. The only evidence the court has, that this matter is a matter that Concord Insurance may be liable to settle is a letter written to the plaintiff’s advocate by the defendant’s advocate stating so. That in my view is not sufficient reason to continue holding this matter in abeyance. The parties and more particularly the defendant need to provide proof to this court that this is a matter involving Concord Insurance. In the absence of such proof this court will order this case to proceed for hearing.
5. With the above in mind I make the following orders:
a. The plaintiff has shown cause why this suit should not be dismissed for want of prosecution.
b. The defendant shall on a date to be fixed at the reading of this Ruling provide documentary evidence that this claim is one which Concord Insurance Company Limited may become liable.
c. Failure to provide such proof this case shall be fixed for hearing.
DATED, SIGNED and DELIVERED at NAIROBI this29thday of November,2018.
MARY KASANGO
JUDGE
Ruling read and delivered in open court in the presence of:
Court Assistant....................Sophie
........................................... for the Plaintiff
........................................... for the Defendant
MARY KASANGO
JUDGE