[2009] KEHC 616 (KLR)
The court found that although there was a period of inactivity after the plaintiff obtained judgment against the second defendant, the plaintiff had made efforts to execute the decree and was hindered by the unavailability of the court diary. The court exercised its discretion in favour of the plaintiff, granting a...
Source-derived case information.
- Citation
- [2009] KEHC 616 (KLR)
- Parties
- Plaintiff: East African Portland Cement Co Ltd; Defendant: Precise Renovators & Decorators Ltd; Defendant: Benard Kingara T/A Precise Renovators & Decorators
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1165 of 2002
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Plaintiff granted three months to fix the suit for hearing; suit to stand dismissed for want of prosecution with costs to the first defendant if not fixed within that period.
- Judges
- FI Koome
- Legal Topics
- Dismissal for Want of Prosecution, Exercise of Judicial Discretion, Delay in Prosecution, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
East African Portland Cement Co Ltd
Plaintiff
Precise Renovators & Decorators Ltd
Defendant
Benard Kingara T/A Precise Renovators & Decorators
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 16 rule 2(1).
- 2 Whether the plaintiff has provided sufficient reasons for the delay in prosecuting the suit.
Ratio Decidendi
The court found that although there was a period of inactivity after the plaintiff obtained judgment against the second defendant, the plaintiff had made efforts to execute the decree and was hindered by the unavailability of the court diary. The court exercised its discretion in favour of the plaintiff, granting a further period of three months to fix the matter for hearing. If the plaintiff fails to do so, the suit will stand dismissed for want of prosecution with costs to the first defendant. The court also awarded the first defendant costs for the notice to show cause proceedings.
Court Disposition
Plaintiff granted three months to fix the suit for hearing; suit to stand dismissed for want of prosecution with costs to the first defendant if not fixed within that period.
Orders
- Plaintiff is granted three months to fix the suit for hearing.
- If the suit is not fixed for hearing within three months, it shall stand dismissed for want of prosecution with costs to the first defendant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 1165 of 2002
EAST AFRICAN PORTLAND CEMENT CO LTD……………..………PLAINTIFF
VERSUS
PRECISE RENOVATORS & DECORATORS LTD………..….…1ST DEFENDANT
BENARD KINGARA
T/A PRECISE RENOVATORS & DECORATORS…………..…..2ND DEFENDANT
RULING
A Notice to show cause why the suit should not be dismissed under Order 16 rule 2(1) was issued in this matter, it came for hearing on 13th November 2009. Counsel for the defendant supported the notice to have the suit dismissed on the grounds that no steps have been taken since 18th October, 2006. However counsel for the plaintiff opposed the notice to have the suit dismissed for want of prosecution. He relied on a detailed affidavit sworn by Shila Kahuki, a legal officer of the plaintiff.
It is contended that the court diary closed, therefore the plaintiff was not able to get a hearing date, moreover, there was default judgment against the second defendant which was entered on 21st February 2008. The plaintiff has been trying to trace the 2nd defendant to execute the decree without success. For those reasons counsel urged the court not to dismiss the suit for want of prosecution.
I have gone through the pleadings in this matter and also the record of proceedings. There were concerted efforts by the plaintiff to have this matter heard, but there is lull form 21st February 2008, when the plaintiff obtained judgment against the 2nd defendant. It is contended that the court diary has not been available and that the plaintiff has been making attempts to execute against the 2nd defendant. I am prepared to exercise my discretion and allow the plaintiff a further period of three months (3) within which to fix this matter for hearing. Failure to do so, this suit shall stand dismissed for want of prosecution with cost to the 1st defendant. The 1st defendant shall also have costs in respect of this notice to show cause.
Ruling read and signed on 27th November 2009
M. KOOME
JUDGE