[2010] KEHC 1303 (KLR)
The court found that although the plaintiff was entitled to notice of the date of delivery of the ruling, and the absence of such notice was unfortunate, the suit had already been struck out for failure to comply with the court's order within the stipulated 7 days. The court held that time for compliance could only...
Source-derived case information.
- Citation
- [2010] KEHC 1303 (KLR)
- Parties
- Plaintiff: Dairycom Kenya Ltd; Defendant: Kenya Dairy Board; Defendant: Baraza Limited t/a Kenya Television Network
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1264 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Review, Vacate or Set Aside Earlier Ruling And/or Enlarge Time to File Verifying Affidavit
- Outcome
- application dismissed with costs
- Legal Topics
- Striking Out of Affidavit, Review of Court Orders, Enlargement of Time, Service of Rulings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dairycom Kenya Ltd
Plaintiff
Kenya Dairy Board
Defendant
Baraza Limited t/a Kenya Television Network
Defendant
Procedural Posture
Civil Case / Ruling on Application to Review, Vacate or Set Aside Earlier Ruling And/or Enlarge Time to File Verifying Affidavit
Legal Issues
- 1 Whether the plaintiff was entitled to notice of the date of delivery of the ruling.
- 2 Whether the court could review, vacate, or set aside its earlier ruling striking out the suit for failure to file a proper verifying affidavit.
- 3 Whether the court could enlarge time for filing the verifying affidavit after the suit had already been struck out.
Ratio Decidendi
The court found that although the plaintiff was entitled to notice of the date of delivery of the ruling, and the absence of such notice was unfortunate, the suit had already been struck out for failure to comply with the court's order within the stipulated 7 days. The court held that time for compliance could only be enlarged if the suit still subsisted, which was not the case here. Furthermore, the plaintiff had not applied for reinstatement of the suit, and the provisions of the Civil Procedure Act and Rules relied upon did not provide a remedy in the circumstances. The court concluded that its jurisdiction had not been properly invoked and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The plaintiff's application for review, vacation, or setting aside of the ruling dated 5th February, 2010 is dismissed with costs.
- No enlargement of time is granted for filing the verifying affidavit.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
(NAIROBI LAW COURTS)
Civil Case 1264 of 2004
DAIRYCOM KENYA LTD ………………………………PLAINTIFF
V E R S U S
KENYA DAIRY BOARD ……….…….………..1ST DEFENDANT
BARAZA LIMITED
T/A KENYA TELEVISION NETWORK …….….2ND DEFENDANT
R U L I N G
The plaint was filed on 19th November, 2004 and was supported by a Verifying Affidavit whose drawer did not print his name and address on the face as is required by section 35 of the Advocates Act. The Defendant took issue with that and applied by summons dated 30th July, 2008 to strike out the Affidavit together with the plaint. Justice Onyancha heard the application on 8th July, 2009 and indicated Ruling would be on 29th September, 2009 at 9 a.m. It was not delivered but instead it was indicated the delivery would be on notice. The Ruling was eventually delivered on 5th February, 2010 following notice through the cause list “RD1” for the day.
The Plaintiff states that it did not receive the notice and was therefore unaware of the date of delivery. This is why it did not attend.
In the Ruling, the court struck out the Affidavit but allowed the Plaintiff 7 days to salvage the situation by filing a fresh one. Since the Plaintiff was unaware of the delivery of the Ruling, court was informed, it did not know it had been given 7 days to file the affidavit. The order of the court was that the suit would stand dismissed if there was no compliance. The legal position, therefore, is that this suit has been struck out with costs.
Although the Ruling was delivered on 5th February, 2010 the Judge indicated the date as 5th February, 2009. That was certainly an error. An inadvertent error. The Plaintiff acknowledges this error.
On 24th March, 2010 the Plaintiff applied by way of motion under sections 3A, 80and 100 of the Civil Procedure Act and Order 44 rule 1(1) of the Civil Procedure Rules to have the court review, vacate and or set aside the Ruling dated 5th February, 2010; and, in the alternative, for the court to enlarge the time within which the Plaintiff is to file its Verifying Affidavit as stated in the Ruling. The complaint by the Plaintiff is that it had no notice of the Ruling and therefore it could not take benefit of the 7 days to file the Verifying Affidavit. The Plaintiff is not aggrieved by the substance of the Ruling. It is not aggrieved by the wrong date of the Ruling. It was expected that its counsel would see the cause list and know the matter was coming up. However, a cause list is not one of the recognized forms of service or giving notice. If it is complained that there was no notice there can be no answer.
This suit was struck out 7 days after the Ruling. Time can only be enlarged if the suit still subsists. There is no application to reinstate the suit.
In short, the Plaintiff finds itself in unfortunate circumstances. The right to be present at the Ruling certainly existed and he was entitled to notice. However, the provisions of the Act and Rulesrelied on in the application do not assist the situation. The jurisdiction of the court has not been properly invoked. The application is dismissed with costs.
DATED AND DELIVERED AT NAIROBITHIS 7TH DAY OF OCTOBER 2010
O. MUCHELULE
J U D G E