[2009] KEHC 3422 (KLR)
The court held that the applicant's notice of motion was procedurally defective as it was brought under the wrong provision (Order 44 instead of Order 9B(8) of the Civil Procedure Rules) and not by chamber summons as required. The court further found that the applicant failed to file the application within a...
Source-derived case information.
- Citation
- [2009] KEHC 3422 (KLR)
- Parties
- Plaintiff: Haron Francis Chege Maina; Defendant: Kamau Kibuku t/a David Kibuku Saw Mills
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 153 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs
- Judges
- FI Koome
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Application Procedure, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Haron Francis Chege Maina
Plaintiff
Kamau Kibuku t/a David Kibuku Saw Mills
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the application to set aside the dismissal order was properly brought before the court.
- 2 Whether the court should exercise its discretion to set aside the dismissal and reinstate the suit.
- 3 Whether the applicant demonstrated good faith and diligence in seeking reinstatement.
Ratio Decidendi
The court held that the applicant's notice of motion was procedurally defective as it was brought under the wrong provision (Order 44 instead of Order 9B(8) of the Civil Procedure Rules) and not by chamber summons as required. The court further found that the applicant failed to file the application within a reasonable time and did not demonstrate good faith or diligence. The court declined to exercise its discretion under Section 3A of the Civil Procedure Act to cure the procedural defect, holding that such discretion does not extend to fundamental errors of procedure. Consequently, the application to set aside the dismissal and reinstate the suit was found to be lacking in merit and was...
Court Disposition
application dismissed with costs
Orders
- The application to set aside the dismissal order and reinstate the suit is dismissed with costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Suit 153 of 2006
HARON FRANCIS CHEGE MAINA…….………….………..PLAINTIFF
VERSUS
KAMAU KIBUKU T/A DAVID KIBUKU SAW MILLS…..DEFENDANT
RULING
This suit was fixed for hearing by consent of both plaintiff and defendant on 4th June 2008. When the matter came up for hearing on 30th July 2008, counsel for the plaintiff or even the plaintiff did not attend court, thus the suit was dismissed for want of prosecution. The plaintiff/applicant has now filed a notice of motion under Order 44 of the Civil Procedure Rules seeking for the orders of 30th July 2008 be set aside and the suit be reinstated. This application is opposed by Mr. Kiburi counsel for the respondent.
I have taken into account the submissions by both counsel for the applicant and respondent. An application for setting aside should be filed under the provisions of Order 9B(8) of the Civil Procedure Rules which provides that such an application be by way of chamber summons. The applicant’s notice of motion which is brought under Order 44 of the Civil Procedure Rules is manifestly defective. Although counsel urges this court to exercise discretion under the provisions of Section 3A of the Civil Procedure Act, I do not think that discretion is exercised to cure a defect of such nature. On the merit of the application, counsel states that he entered the date on the diary wrongly, and that the respondent will not suffer prejudice. The respondent does not run the firm of the applicant’s advocates and he too should not be prejudiced by the applicant’s choice of advocates. Moreover counsel for the respondent did not annex an extract copy of the diary for 30th July 2008 and this application was also not filed within a reasonable time so that the applicant can demonstrate good faith and diligence on his part.
I need not say more on this application which I find lacking in merit and bad in law. It is dismissed with costs.
Ruling read and signed on 12th day of May, 2009
M. KOOME
JUDGE