[2015] KEHC 5225 (KLR)
The court found that the plaintiff failed to demonstrate sufficient cause for the prolonged inaction in prosecuting the suit. The arbitral proceedings referenced by the plaintiff did not involve the same parties as the present suit, and the challenge to the arbitral award was being pursued in a separate High Court...
Source-derived case information.
- Citation
- [2015] KEHC 5225 (KLR)
- Parties
- Plaintiff: Fountain School Limuru Ltd; Defendant: Christopher Wanjaria Kimiti
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 154 of 2011
- Procedural Posture
- Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Arbitration Award Challenge, Service of Summons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fountain School Limuru Ltd
Plaintiff
Christopher Wanjaria Kimiti
Defendant
Procedural Posture
Civil Suit / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether sufficient cause has been shown to prevent dismissal of the suit for want of prosecution.
- 2 Whether ongoing arbitral proceedings and award justify the plaintiff's failure to prosecute the suit.
- 3 Whether the arbitral award and its challenge in a separate suit affect the current proceedings.
Ratio Decidendi
The court found that the plaintiff failed to demonstrate sufficient cause for the prolonged inaction in prosecuting the suit. The arbitral proceedings referenced by the plaintiff did not involve the same parties as the present suit, and the challenge to the arbitral award was being pursued in a separate High Court application, not within this suit. Furthermore, the plaintiff had not taken any steps to set aside the arbitral award or to have the dispute determined in this suit. There was also no evidence that summons to enter appearance had ever been served on the defendant since the suit's filing in 2011. The court concluded that the existence of the arbitral proceedings and award could...
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- There will be no orders as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENVIRONMENTAL & LAND DIVISION
ELC CIVIL NO. 154 OF 2011
FOUNTAIN SCHOOL LIMURU LTD..................................................PLAINTIFF
-VERSUS-
CHRISTOPHER WANJARIA KIMITI............................................. DEFENDANT
RULING
In response to a Notice to Show cause why the suitherein should not be dismissed for want of prosecution under the Provisionsof Order 17 Rule 2 of the Civil Procedure Rules, counsel for the Plaintiff has filed an affidavit detailing why for a period of over 2 years the suit herein has not been actively prosecuted. TheAffidavit it is to be noted has been filed by the law firm of Messrs. Kinoti&Kibe Advocates whilst the suit herein was commenced by or throughthe firm of MachariaKahonge& Co. Advocates. Nonetheless, the affidavit is to the effect that following the filing of this suit the parties proceeded on to arbitration and an Award was rendered by the Sole Arbitrator in December, 2014. The Award is the subject of contest and challengein High Court Misc. Civil Application No. 600 of 2014 at Nairobi. It is easy to understand why the challenge was not filed in the suit. This suit never existed when the arbitral proceedings were commenced in the year 2010. This can be gleaned from the Award which is attached to Mr. KibeMungai’s affidavit.Paragraph 4 thereof is clear that the Sole Arbitrator was appointed on 8th March, 2010.
While I have carefully considered the affidavit of KibeMungai I am not convinced that sufficient cause has been shown why this suit should not be dismissed for want of prosecution. The arbitral proceedings alluded to though concerning the same subject matter did not involve the parties to these proceedings. The Award is the subject of challenge in High Court Misc. Civil Appl. No. 600 of 2014. The challenge has not been filed in this suit. Neither has the Plaintiff even sought orders to have the Arbitral Award set aside and cause the dispute to be heard and determined in this suit. I am satisfied that it would be proportionate to dismiss this suit. I note too that the reliefs sought before the Arbitrator by another party were the same reliefs the Plaintiff had sought in this suit. I also note that since the filing of this suit in the year 2011 there is no evidence that the summons to enter appearance have ever been served upon the defendant.
The Plaintiff also filed this suit whilst knowing that the Arbitral proceedings were already on going. The Arbitration and Award cannot therefore be used as a reason for the stalled prosecution of this suit. I deem it that it would beappropriate to dismiss this suit for want of prosecution as in any event the Arbitral Tribunal did determine the dispute. This suit is dismissed for want of prosecution. There will however be no orders as to costs. I have made the foregoing conscious of the fact that the Plaintiff may very well seek to join in the proceedings in ELC No. 153 of 2011 (NBI) in the event the application to set aside the Arbitral Award succeeds.
Dated, signed and delivered at Nairobi this 23rd day of April, 2015.
J. L. ONGUTO
JUDGE
In the presence of:-
..................................... for the Plaintiff
..................................... for the Defendants