[2014] KEHC 3590 (KLR)
The court found that the Plaintiff failed to take out summons since filing the suit and had not taken any steps to prosecute the matter. The mandatory provisions of Order 5 Rule 1 require that summons be issued with the Plaint, and the Plaintiff's failure to comply with this requirement, coupled with the lack of any...
Source-derived case information.
- Citation
- [2014] KEHC 3590 (KLR)
- Parties
- Plaintiff: Fredrick Kiritu t/a Saatchi Kabiro & Associates; Defendant: Turn-O-Metal
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 324 of 2012
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss Suit for Want of Summons
- Outcome
- Application allowed. Suit dismissed with costs to the Defendant/Applicant.
- Judges
- DO Ogembo
- Legal Topics
- Abatement of Suit, Dismissal for Want of Prosecution, Issuance of Summons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Kiritu t/a Saatchi Kabiro & Associates
Plaintiff
Turn-O-Metal
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss Suit for Want of Summons
Legal Issues
- 1 Whether the suit should be declared abated or dismissed for want of summons.
- 2 Whether the Plaintiff failed to comply with the mandatory requirement to issue summons within the prescribed period.
- 3 Whether the Defendant is entitled to costs of the suit and the application.
Ratio Decidendi
The court found that the Plaintiff failed to take out summons since filing the suit and had not taken any steps to prosecute the matter. The mandatory provisions of Order 5 Rule 1 require that summons be issued with the Plaint, and the Plaintiff's failure to comply with this requirement, coupled with the lack of any action for over two years, justified dismissal of the suit. The court held that there was no evidence the Plaintiff intended to comply with the rules or prosecute the suit, and therefore allowed the Defendant's application to dismiss the suit with costs.
Court Disposition
Application allowed. Suit dismissed with costs to the Defendant/Applicant.
Orders
- The application dated 25th April 2013 is allowed as prayed.
- The suit is dismissed with costs to the Defendant/Applicant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 324 OF 2012
FREDRICK KIRITU T/A SAATCHI
KABIRO & ASSOCIATES:::::::::::::::::::::::: PLAINTIFF/RESPONDENT
- VERSUS -
TURN-O-METAL ::::::::::::::::::::::::::::::::::::: DEFENDANT/APPLICANT
R U L I N G
The Notice of Motion application before the court is dated 25th April 2013. It is brought under Order 5 Rule 1 (6) and 2 (7), Order 17 Rule 2 (3), Order 51 Rule 1 of the Civil Procedure Rules 2010, Section 3A of the Civil Procedure Act.
The application seeks the following orders:-
That this Honourable court be pleased to declare that the suit herein has abated as against the Defendant and that costs be awarded to the Defendant accordingly.
That in the alternative to prayer (a) above, this Honourable court be and is hereby pleased to dismiss the suit herein with costs to the Defendant for want of summons.
That the cost of this application be borne by the Plaintiff in any event.
The application is premised on the grounds set out therein and is supported by affidavit of KENNEDY O. OCHIENG dated 25th April 2013. The application is not opposed. The application was served upon the Defendant. The Notice of Hearing was also served and the Plaintiff filed an Affidavit of Service in court on 29th May 2014 to prove service.
The brief facts about the application are that this suit was filed by the Plaintiff against the Defendant on 25th May 2012 simultaneously with an interlocutory application for injunction orders which were granted by this court on 16th July 2012. The Plaintiff has to date not taken out summons. Neither has the Plaintiff sought to set the matter for hearing as there is no defence to the suit, hence this application.
I have considered the application. Under Order 17 Rule (2) (3) any party to a suit may apply for its dismissal in a matter in which no application has been made or step taken for a period of one year. Also, under Order 5 Rule 2 (7) a court can dismiss a suit at the expiry of twenty-four months from the issuance of original summons. However, in this case, summons have never been issued. This failure offends Order 5 Rule 1 and subsequent rules thereunder which require summons to be issued with a copy of the Plaint. But even where it is not possible to comply with that direction, summons still must issue within a period before which summons must expire. There is no evidence that this direction will ever be complied with as the Plaintiff is evidently not interested in the suit.
In the upshot I allow the application dated 25th April 2013 as prayed with costs of both the suit and the application for the Defendant/Applicant.
Orders accordingly.
DATED, READ AND DELIVERED AT NAIROBI THIS 18TH DAY OF JULY 2014
E. K. O. OGOLA
JUDGE
PRESENT:
No appearance for Plaintiff/Respondent
Ataka for Defendant/ Applicant
Teresia – Court Clerk