[2005] KEHC 2245 (KLR)
The court found that the plaintiff's failure to prosecute the suit was due to an excusable mistake—namely, not informing his advocate of his change of address after closing his business. The court held that, given the nature of the dispute involving land and the allegation that the loan had been fully paid, the...
Source-derived case information.
- Citation
- [2005] KEHC 2245 (KLR)
- Parties
- Plaintiff: Firoz Jusab Sumar t/a Malindi Auto Parts; Defendant: Barclays Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 383 of 2000
- Procedural Posture
- Civil Suit / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
- Outcome
- Application for reinstatement allowed; suit reinstated; costs to defendant.
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Ex Parte Orders, Service of Process, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Firoz Jusab Sumar t/a Malindi Auto Parts
Plaintiff
Barclays Bank of Kenya Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution was made ex-parte and if it should be set aside.
- 2 Whether the plaintiff has provided sufficient grounds for reinstatement of the suit.
Ratio Decidendi
The court found that the plaintiff's failure to prosecute the suit was due to an excusable mistake—namely, not informing his advocate of his change of address after closing his business. The court held that, given the nature of the dispute involving land and the allegation that the loan had been fully paid, the plaintiff should be afforded an opportunity to prosecute his case. The court also clarified that the dismissal order was properly made ex-parte since the plaintiff had not filed a replying affidavit or grounds of opposition, and mere presence of counsel did not alter the ex-parte nature of the hearing. Consequently, the court exercised its discretion to set aside the dismissal and...
Court Disposition
Application for reinstatement allowed; suit reinstated; costs to defendant.
Orders
- The order of dismissal dated 4th November 2004 is set aside.
- The suit is reinstated.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA Civil Suit 383 of 2000
FIROZ JUSAB SUMAR t/a MALINDI AUTO PARTS ………………………. PLAINTIFF - Versus - BARCLAYS BANK OF KENYA LTD ……… DEFENDANT
R U L I N G
This suit was on 4th November 2004 dismissed for want of prosecution pursuant to an application made in that regard. The plaintiff had not filed a replying affidavit or grounds of opposition. So the orders were granted pursuant to Order 50 Rule 16. This application brought under Order 50 Rule 17 is therefore proper and it cannot be said that because counsel for the plaintiff was in court the application was not heard ex-parte. If the plaintiff had filed a replying affidavit or grounds of opposition and counsel appeared on the hearing date but for one reason or the other he was not ready to proceed and the matter was nonetheless heard then the hearing could not be said to be ex-parte.Mr. Busieka’s argument that the dismissal order was not made ex-parte is therefore overruled. I have considered the plaintiffs grounds for seeking a reinstatement of this suit. He says he was using a common post office box and because he closed down his business at Malindi and has not been there he has not been receiving his advocates letters. His mistake is that he did not advise his advocate of his change of residence. That is excusable.
Given that this case relates to a piece of land which the plaintiff may lose and the allegation that the plaintiff has paid in full the loan due to the defendant I think the plaintiff deserves to be given a chance to prosecute his case. Consequently I set aside the order of this court of 4th November 2004 and reinstate this suit. The plaintiff shall fix this case for hearing within six months. The defendant shall have the costs of this application and those of its application dated 22nd July 2004.
DATED and delivered this 11th day of May 2005.
D.K. MARAGA JUDGE