[2015] KEHC 5195 (KLR)
The court found that the plaintiff had failed to comply with the order to deposit KShs. 500,000 as security for costs within the stipulated period. The plaintiff also demonstrated reluctance in prosecuting the suit, and no opposition was filed against the application to strike out the plaint. The court held that it...
Source-derived case information.
- Citation
- [2015] KEHC 5195 (KLR)
- Parties
- Plaintiff: Graham Vetch; Defendant: Calvin Burgess; Defendant: Dominion Farms Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 405 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Plaint for Non Compliance With Security for Costs Order
- Outcome
- plaint struck out for non-compliance with security for costs order; costs awarded to defendants
- Legal Topics
- Security for Costs, Striking Out Plaint, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Graham Vetch
Plaintiff
Calvin Burgess
Defendant
Dominion Farms Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Plaint for Non Compliance With Security for Costs Order
Legal Issues
- 1 Whether the plaint should be struck out for failure to comply with a court order requiring deposit of security for costs.
- 2 Whether continued delay by the plaintiff in prosecuting the suit justifies striking out the plaint.
Ratio Decidendi
The court found that the plaintiff had failed to comply with the order to deposit KShs. 500,000 as security for costs within the stipulated period. The plaintiff also demonstrated reluctance in prosecuting the suit, and no opposition was filed against the application to strike out the plaint. The court held that it would be unjust to keep the defendants in abeyance under these circumstances. Consequently, the court exercised its discretion to strike out the plaint for non-compliance with its orders and awarded costs to the defendants.
Court Disposition
plaint struck out for non-compliance with security for costs order; costs awarded to defendants
Orders
- The plaint is struck out.
- The defendants shall have costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 405 OF 2008
GRAHAM VETCH.........................................................................PLAINTIFF
VERSUS
1. CALVIN BURGESS
2. DOMINION FARMS LTD........................................................DEFENDANT
RULING
1. The notice of motion dated 12th September, 2014 seeks to have the plaint herein struck out. The application is premised on the grounds on the face of the application and the supporting affidavit of the 1st Defendant. He stated that despite the orders of 28th April, 2014, the Plaintiff has failed to deposit the decretal amount of KShs. 500,000/= as ordered.
2. The Plaintiff has not opposed the application.
3. The Defendants herein filed an application on 26th November, 2012 seeking orders that the Plaintiff does provide security for costs by depositing KShs. 500,000/= in a joint interest earning account in the names of the advocates for the parties and that in default, the plaint be struck out. This court Ougo J., on 28th April, 2014 allowed the said application and granted the orders on the terms that the sum of KShs. 500,000/= be deposited within thirty (30) days from the date of the order, that the parties do comply with Order 11 of the Civil Procedure Rules and the Plaintiff does take steps to prosecute the suit to avoid it being struck out.
4. The Plaintiff has not complied with the orders of court as directed. I have taken the liberty to peruse this file and it is clear that the Plaintiff is rather reluctant in prosecuting this matter. Holding the Defendants in abeyance in this matter further shall be unjust. In the circumstances I allow the application herein by striking out the plaint. The Defendants shall have costs.
Dated, Signed and Delivered in open court this 24th day of April, 2015.
J. K. SERGON
JUDGE
In the presence of:
........................................... for the Plaintiff
........................................... for the Defendants