[2007] KEHC 3563 (KLR)
The court held that the application to set aside the dismissal order was misconceived because Order XVI rule 5 of the Civil Procedure Rules does not permit setting aside such an order; instead, a new suit must be filed, subject to the Limitation of Actions Act. Section 3A of the Civil Procedure Act cannot be invoked...
Source-derived case information.
- Citation
- [2007] KEHC 3563 (KLR)
- Parties
- Plaintiff: David Irungu Gicheru; Defendant: Kenyatta University
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1803 of 2001
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Transfer of Suit, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Irungu Gicheru
Plaintiff
Kenyatta University
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court can set aside an order dismissing a suit for want of prosecution under section 3A of the Civil Procedure Act.
- 2 Whether the applicant is entitled to reinstatement of the suit after inordinate delay.
- 3 Whether the High Court had jurisdiction over the transferred suit.
Ratio Decidendi
The court held that the application to set aside the dismissal order was misconceived because Order XVI rule 5 of the Civil Procedure Rules does not permit setting aside such an order; instead, a new suit must be filed, subject to the Limitation of Actions Act. Section 3A of the Civil Procedure Act cannot be invoked where specific procedural rules exist. Furthermore, the court found that even if the application were allowed, the High Court lacked jurisdiction to hear the suit as it had been transferred from a court that itself lacked jurisdiction. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to set aside the dismissal order is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1803 of 2001
1. Land and Environmental Law Division
2. Civil Practice and Procedure
i) Application to notice of motion 28. 8.06 to set aside dismissal of suit.
Section 3A
ii) In reply by respondent
In ordinate delay – after 4 years.
3. Held: Application dismissed.
4. Case law
5. Advocates:
F.S. Mwaura of Mwaura Shairi & Co. Advocates for the plaintiff/ applicant - present
A.M. Kiaragu of Kiaragu & Co. Advocates for the defendant/respondent – present
DAVID IRUNGU GICHERU ……………………………….......PLAINTIFF
VERSUS
KENYATTA UNIVERSITY ………………..……………….. DEFENDANT
RULING
1: Application to set aside orders of the court – G.B.M. Kariuki J 17 September 2003
dismissing suit for lack of persecution.
1. The parties were heard inter parties on 17 September 2003 by G.B.M. Kariuki J on application dated 21 May 2003 seeking this courts leave to dismiss the suit for want of prosecution. That no action had been taken for two years.
2. The application was granted by the Hon. Judge on
17 September 2003.
3. The applicant comes to court under section 3A of the Civil Procedure Act and seeks this courts orders to set the orders of G.B.M. Kariuki J. The Hon. Judge has since left the station and I hear this matter under order 17 r 10 Civil Procedure Rules.
4. The reasons sought is that the plaintiff applicant was not aware nor informed that the suit had been dismissed and or transferred from the lower courts to the High Court.
5. The suit was originally filed in the Senior Principal Magistrates Court No.364/94 (civil case) on 14 February 1994. Four years later the plaintiff/applicant applied for transfer of the case to the High Court at Nairobi Miscellaneous civil application 948/97 and the same was granted. No action was taken by the plaintiff.
6. The plaintiff took no action thereafter. The cause of action arose in 2 January 1991. After 13 years, no trial had been held.
7. The Hon. Judge allowed it and dismissed the suit.
8. Thus four years later the plaintiff returns to seek prayers of setting aside this courts orders.
II: Findings
9. The application has been brought under section 3A Civil Procedure Act. The application to dismiss the suit was made under Order XVI r 5 Civil Procedure Rules under this rule a party cannot set aside a dismissal order but is required by law to file a new suit subject to the Limitation of Actions not having expired. If it has, parties are given an opportunity to seek for leave to file suit out of time. Section 3A Civil Procedure Act is not available to the applicant.
10. If per chance it was available to the applicant the suit itself would not sand. The reason being that it was transferred from the lower courts to the High Court. The reasons of lack of jurisdiction by the subordinate courts to hear the matter. The applicant transferred this suit to the High Court. The High court would consequently have no jurisdiction to hear the suit.
11. I hereby disallow this application and dismiss it with costs to the respondent.
Dated this 11th day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
F.S. Mwaura of Mwaura Shairi & Co. Advocates for the plaintiff/ applicant - present
A.M. Kiaragu of Kiaragu & Co. Advocates for the defendant/respondent - present