[2019] KEHC 156 (KLR)
The court found that although the plaintiff had not actively prosecuted the suit after obtaining injunctive orders, the ruling on the previous application was delivered in the absence of the plaintiff's counsel. Dismissing the suit in these circumstances would be prejudicial. The court emphasized that summary...
Source-derived case information.
- Citation
- [2019] KEHC 156 (KLR)
- Parties
- Plaintiff: George W. Omondi; Defendant: Guilders International Bank Ltd; Defendant: Guardian Bank Ltd; Defendant: Zen Nominees Limited; Defendant: Whitestone Auctioneers Ltd; Defendant: Land Registrar, Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 322 of 2018
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
- Outcome
- Notice to show cause dismissed; suit to proceed subject to strict timelines.
- Legal Topics
- Dismissal for Want of Prosecution, Notice to Show Cause, Case Management, Injunctive Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George W. Omondi
Plaintiff
Guilders International Bank Ltd
Defendant
Guardian Bank Ltd
Defendant
Zen Nominees Limited
Defendant
Whitestone Auctioneers Ltd
Defendant
Land Registrar, Nairobi
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under the notice to show cause procedure.
- 2 Whether the plaintiff's explanation for delay in prosecuting the suit is sufficient to avoid dismissal.
- 3 Whether summary dismissal is appropriate in the circumstances.
Ratio Decidendi
The court found that although the plaintiff had not actively prosecuted the suit after obtaining injunctive orders, the ruling on the previous application was delivered in the absence of the plaintiff's counsel. Dismissing the suit in these circumstances would be prejudicial. The court emphasized that summary dismissal is a drastic remedy to be used sparingly and only as a last resort. Given the plaintiff's expressed willingness to proceed and the absence of deliberate inaction, the court exercised its discretion to allow the suit to continue, subject to strict timelines for prosecution. The notice to show cause was therefore dismissed, but the plaintiff was warned that failure to set the...
Court Disposition
Notice to show cause dismissed; suit to proceed subject to strict timelines.
Orders
- The Amended Plaint to be served upon all parties within 7 days of this Ruling.
- The Defendants to file and serve their defences to the Amended Plaint within 7 days of service.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
CIVIL CASE NO.322 OF 2018
GEORGE W. OMONDI....................................................PLAINTIFF
VERSUS
GUILDERS INTERNATIONAL BANK LTD.......1ST DEFENDANT
GUARDIAN BANK LTD........................................2ND DEFENDANT
ZEN NOMINEES LIMITED..................................3RD DEFENDANT
WHITESTONE AUCTIONEERS LTD.................4TH DEFENDANT
LAND REGISTRAR, NAIROBI............................5TH DEFENDANT
RULING
On 5th August 2019 a Notice to Show Cause why this suit should not be dismissed was issued to the Plaintiff in this matter. In reply to the NTSC the Plaintiff filed the Replying Affidavit dated 12th September 2019,sworn byGEORGE W. OMONDI,the Plaintiff herein, in which he urged the Court not to dismiss the suit.
I have carefully perused that Replying Affidavit. I note that the Plaintiff infers that they were awaiting the Ruling of the Court on the Notice of Motion dated 6th June 2016, which Ruling the Plaintiff claims is yet to be delivered. This is however not the correct position. The Ruling in that Application, which is in the court file, indicates that a decision in favour of the Plaintiffs was delivered by Hon Justice Olga Sewe on 9th February 2018. The Court record for that date shows that the Ruling was delivered in presence of Counsel for the Defendants, but that there was no representation for the Plaintiff. That was the last activity in the file before the NTSC was issued.
The Plaintiffs claim that they regularly sent clerks to peruse the file in the court Registry cannot be correct, because if this had done then they would not have failed to see the Ruling in the Court file. My own view is that having the benefit of injunctive orders in his favour the Plaintiff opted to sit back and take no action to set down the suit for hearing.
Be that as it may be given that the Ruling was delivered in the absence of Counsel for the Plaintiff, I find that it would prejudicial to dismiss the suit. Summary dismissal of suits has been held to be a draconian measure and one which should only be applied as a last resort.
The Plaintiff has indicated its willingness to pursue the suit and ought therefore to be given a chance to prosecute the same. Accordingly I dismiss the NTSC dated 5th August 2019 and direct as follows:-
1. The Amended Plaint to be served upon all parties within 7 days of this Ruling.
2. The Defendants to file and serve their defences to the Amended Plaint within 7 days of service.
3. Parties to appear before the Hon Deputy Registrar for Case Management on 19th November 2019.
4. The suit to be set down for hearing within 90 days of the date of this Ruling.
5. If the suit is not so set down for hearing within 90 days then the same will stand dismissed with no further reference to the Plaintiff.
6. Costs of the notice to Show Cause to be met by Plaintiff.
Dated in Nairobi this 12thday of November 2019.
………………………………...
Justice Maureen A. Odero