[2015] KEELC 519 (KLR)
The court found that the Plaintiff had provided tenable and acceptable reasons for the non-prosecution of the suit, namely the pendency of arbitral proceedings and a challenge to the arbitral award in Misc. Civil Application No. 600 of 2014. The court held that it would not be proportionate to require prosecution of...
Source-derived case information.
- Citation
- [2015] KEELC 519 (KLR)
- Parties
- Plaintiff: FEP Holdings Limited; Defendant: Jossy Preparatory School Ltd; Defendant: Christopher Wanjaria Kimiti
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 153 of 2011
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Notice to show cause dispensed with; suit to await outcome of related application.
- Legal Topics
- Dismissal for Want of Prosecution, Arbitration Award Challenge, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
FEP Holdings Limited
Plaintiff
Jossy Preparatory School Ltd
Defendant
Christopher Wanjaria Kimiti
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether the pendency of arbitral proceedings and a related challenge justifies non-prosecution of the suit.
Ratio Decidendi
The court found that the Plaintiff had provided tenable and acceptable reasons for the non-prosecution of the suit, namely the pendency of arbitral proceedings and a challenge to the arbitral award in Misc. Civil Application No. 600 of 2014. The court held that it would not be proportionate to require prosecution of the suit while the challenge to the arbitral award is unresolved, as the outcome of that challenge will determine whether the suit should proceed. Accordingly, the court dispensed with the Notice to show cause and directed that the suit await the determination of the related application challenging the arbitral award.
Court Disposition
Notice to show cause dispensed with; suit to await outcome of related application.
Orders
- The Notice to show cause is dispensed with.
- The suit shall await the determination of High Court Misc. Civil Application No. 600 of 2014.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ENVIRONMENTAL & LAND DIVISION
ELC CIVIL NO. 153 OF 2011
FEP HOLDINGS LIMITED.......................................PLAINTIFF
-VERSUS-
JOSSY PREPARATORY SCHOOL LTD............1STDEFENDANT
CHRISTOPHER WANJARIA KIMITI.................2ND DEFENDANT
RULING
In response to a Notice to show cause why the suit herein should not be dismissed for want of prosecution underthe provisions of Order 17 Rule 2 of the Civil Procedure Rules, Counsel for the Plaintiff has filed an affidavit detailing why for over a period of over two (2) years the suit herein has not been actively prosecuted. The affidavit it is to benoted has been filed by the law firm of Kinoti and Kibe Advocates. I have read through the affidavit. The suit herein sought to have the contracts of sale of various parcels of land vacated and avoided. the matter however proceeded to arbitration and an Award was made. That Award is the subjectof challenge by the Plaintiff before this court in Misc.Civil Application No. 600 of 2014. If the challenge succeeds it will be probable that this suit will then be competently resurrected and prosecuted. I am satisfied that this suit could not have been prosecuted whilst the arbitral proceedings were on going, that is notwithstanding the fact that the arbitral forum was convened before this suit was filed and further that the Plaintiff never, for undisclosed reason, participated in the arbitral proceedings.
In short, the reasons advanced for the non-prosecutionof this suitare tenable and acceptable. I will consequently dispense with the Notice to show cause and direct that this suit do await the determination of High Court Misc. Civil Application No. 600 of 2014. The Plaintiff will thereafter determine whether to proceed with the suit or not in the event the Award is set aside. It would only be proportionate if such an approach was adopted.
Dated, signed and delivered at Nairobi this 22ndday of April, 2015.
J. L. ONGUTO
JUDGE
In the presence of:-
....................................................... for the Plaintiff/Applicant
....................................................... for the Defendants/Respondent