[2005] KEHC 1484 (KLR)
The court found that the applicant failed to provide any reasons for the absence of its counsel on the date the application was dismissed for want of prosecution. Additionally, there was no explanation for the significant delay between the dismissal order and the filing of the present application. In the absence of...
Source-derived case information.
- Citation
- [2005] KEHC 1484 (KLR)
- Parties
- Applicant: Far East Car Bank Ltd; Respondent: Julius Maina Nderitu
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- ? 112 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Earlier Application
- Outcome
- application dismissed with costs
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Far East Car Bank Ltd
Applicant
Julius Maina Nderitu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Earlier Application
Legal Issues
- 1 Whether the court should set aside or vary its orders dated 7/10/2004 dismissing the applicant's earlier application for want of prosecution.
- 2 Whether the application to reinstate the application dated 21/5/2004 should be granted despite the delay and lack of explanation for non-attendance.
Ratio Decidendi
The court found that the applicant failed to provide any reasons for the absence of its counsel on the date the application was dismissed for want of prosecution. Additionally, there was no explanation for the significant delay between the dismissal order and the filing of the present application. In the absence of any satisfactory explanation for both the non-attendance and the delay, the court held that the application lacked merit. The court exercised its discretion against the applicant and dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application dated 20th April 2005 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
Misc Civ Appli 112 of 2004
FAR EAST CAR BANK LTD……………………………APPLICANT
VERSES
JULIUS MAINA NDERITU…………………………..RESPONDENT
RULING
This is an application by M/s far east car bank Ltd, the applicant seeking the following two reliefs of the application dated 20thApril 2005,
(1) That this court be pleased to set aside or vary its orders dated 7/10/2004 and
(2) That this court be pleased to re-instate the application dated 21/5/2004.
The application is indicated to be brought under section 3A of Civil Procedure Act, and order 1xB rule 8 of the civil procedure Rules and is supported by some grounds on the body of the summons and an affidavit of Mohamed Afzal ,the Director of the applicant .Julius Maina Nderitu, the respondent opposes the application relying on the his own replying affidavit.
On 21st may 2004, the applicant filed an application in this court seeking an order for transfer to Eldoret Chief Magistrate’s Court No. 112 of 2004 between it and the respondent to Kisumu Chief Magistrate’s court for hearing and final determination on the ground that the dispute the subject of the suit arose in K isumu and all the witnesses the applicant intends to call are resident in Kisumu but the respondent had gone to Eldoret and obtained orders which were being improperly used for a seizure of motor vehicle registration no.KAN 290Z.It was contended that ex-parte orders of stay of proceeding in Eldoret Chief Magistrate’s Court No. 112 of 2004 pending the inter-party hearing were granted but on 7th October 2004,the application dated 21st May 2004 was dismissed for want of prosecution. On 20th May 2005, the present application was filed seeking astray of proceedings in Eldoret Chief Magistrate Court no.112 of 2004, pending the interparty hearing of application .
As indicated above, the applicant seeks an to side aside order dismissing the application dated 21st May 2004 which were made on 7th October 2004 for want of prosecution There are no reasons given why the applicant counsel was absent on that date.There is also no explanation for the long delay from 7th October2004 to 20th April2005,before this application was brought, I find that this application was without merit and the same is dismissed with costs.
Dated and delivered at Kisumu this 29th day of jJuly,2005.
B.K.TANUI
JUDGE
In the presence of ,
Mr P.J. Otieno for Momanyi for responded
N/A for applicant.
B.K. TANUI
JUDGE