[2011] KEHC 2014 (KLR)
Both parties failed to take any steps to prosecute their respective claims for over seven years. The plaintiff admitted to not proceeding due to the closure of the defendant's operations and the perceived futility of recovery. The defendant, despite having a counterclaim, also failed to advance its cause. The court...
Source-derived case information.
- Citation
- [2011] KEHC 2014 (KLR)
- Parties
- Plaintiff: First Assurance Company Ltd; Defendant: Kingsgate Insurance Brokers Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1888 of 2001
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Dismissal Under Order Xvi Rule 2(1) Civil Procedure Rules
- Outcome
- Suit and counterclaim dismissed for want of prosecution. Each party to bear its own costs.
- Judges
- CM Njagi
- Legal Topics
- Dismissal for Want of Prosecution, Counterclaim Procedure, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
First Assurance Company Ltd
Plaintiff
Kingsgate Insurance Brokers Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Dismissal Under Order Xvi Rule 2(1) Civil Procedure Rules
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order XVI Rule 2(1) of the Civil Procedure Rules.
- 2 Whether the defendant's counterclaim should also be dismissed for want of prosecution.
Ratio Decidendi
Both parties failed to take any steps to prosecute their respective claims for over seven years. The plaintiff admitted to not proceeding due to the closure of the defendant's operations and the perceived futility of recovery. The defendant, despite having a counterclaim, also failed to advance its cause. The court found that neither party showed good cause for the delay. Under Order XVI Rule 2(1) of the Civil Procedure Rules, the court has discretion to dismiss a suit where there has been inaction for over a year. The court exercised this discretion, holding both parties equally responsible for the lack of progress, and dismissed both the main suit and the counterclaim. Each party was...
Court Disposition
Suit and counterclaim dismissed for want of prosecution. Each party to bear its own costs.
Orders
- The suit is dismissed under Order XVI Rule 2(1) of the Civil Procedure Rules.
- The counterclaim is also dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI(MILIMANI COMMERCIAL COURT COMMERCIAL AND TAX DIVISION)
CIVIL CASE NO. 1888 OF 2001
FIRST ASSURANCE COMPANY LTD................................................................................PLAINTIFF
VERSUS
KINGSGATE INSURANCE BROKERS LTD....................................................................DEFENDANT
R U L I N G
By a notice dated 25th February, 2010, the Advocates for the respective parties herein were requested to appear in Court and Show Cause why the suit should not be dismissed under Order XVI Rule 2 (1)of theCivil Procedure Rules.
In a replying affidavit thereto, the Plaintiff’s Advocate, Ms. Kahoya, conceded that she was aware that this matter had been last in Court on 3rd December, 2002. She further deposed that she was aware that the Defendant Company closed its operations, and the Plaintiff did not proceed with the case due to the remote chances of the Defendant’s recovery. In a nutshell, the only reason for not taking a hearing date was as a result of the closure of operations by the Defendant.
On her part, Ms. Chege for the Defendant supported the dismissal of the suit under Order XVI Rule 2 (1)with the judgment on the counterclaim.
Order XVI Rule 2 (1) of the Civil Procedure Rules states as follows –
“In any suit in which no application has been made or step taken by either party for one year, the Court may give notice in writing to the parties to Show Cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”
It is evident from Ms Kahoya’s affidavit that the Plaintiff is not keen on proceeding with this matter because of the closure of operations by the Defendant, and the latter’s remote chances of recovery. Although the Defendant itself has a counterclaim, which is taken in law as a plaint in its own right, the Defendant should also have taken steps to advance its cause regarding that counterclaim. However, it did not do so for more than seven years. Each party has a responsibility to take action to progress the matter, but none of them did so in this suit.
In these circumstances, I find that both parties are equally to blame, and that no good reason has been advanced for maintaining this suit. It is accordingly dismissed under Order XVI Rule 2 (1). For the same reasons, the counterclaim is also dismissed. Each party will bear its own costs.
Orders accordingly.
DATED and DELIVERED at NAIROBI this 13th day of April, 2011.
L. NJAGI
JUDGE