[2008] KEHC 2621 (KLR)
The court found that the plaintiff had not filed any replying affidavit to oppose the notice of motion for dismissal for want of prosecution, and that the advocate who purported to appear for the plaintiff was not properly on record, having not filed a notice of change of advocates. As such, the submissions made by...
Source-derived case information.
- Citation
- [2008] KEHC 2621 (KLR)
- Parties
- Plaintiff: Hassan Magiya Kiage; Defendant: De La Rue Currency & Security Print Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 973 of 2003
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- JM Khamoni
- Legal Topics
- Dismissal for Want of Prosecution, Notice of Motion, Representation of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hassan Magiya Kiage
Plaintiff
De La Rue Currency & Security Print Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution as more than one year had elapsed since the matter was last in court.
- 2 Whether submissions by an advocate not properly on record have any legal effect.
Ratio Decidendi
The court found that the plaintiff had not filed any replying affidavit to oppose the notice of motion for dismissal for want of prosecution, and that the advocate who purported to appear for the plaintiff was not properly on record, having not filed a notice of change of advocates. As such, the submissions made by the purported advocate were deemed hearsay and of no legal effect. The court therefore granted the defendant's application and dismissed the suit for want of prosecution.
Court Disposition
suit dismissed for want of prosecution
Orders
- The Notice of Motion dated 31st October 2007 is granted as prayed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Suit 973 of 2003
HASSAN MAGIYA KIAGE…………….…………………PLAINTIFF/RESPONDENT
VERSUS
DE LA RUE CURRENCY &
SECURITY PRINT LTD…..................…DEFENDANT/APPLICANT
RULING
In this Notice of Motion dated 31st October 2007 praying for the dismissal of the Plaintiff’s suit herein for want of prosecution on the ground that more than one year has elapsed since the matter was stood over generally by the Court in January 2006, no replying affidavit has been filed by the Plaintiff and therefore legally the Notice of Motion remained unopposed.
But during the hearing before me, surprisingly Mr. Omondi as Counsel for the Applicant, raised no objection to the appearance of Mr. Mugire who said was appearing for the Plaintiff/Respondent and went ahead to address me in reply to submissions by Mr. Omondi before I realized that no replying affidavit had been filed and Mr. Mugire was not from the Law firm of S.M. Gwaro, Advocate on record as representing the Plaintiff in this matter and served as stated in the Applicant’s Affidavit of service dated 9th November 2007 and filed on 23rd November 2007.
Mr. Mugire told me he came in this case the last week of January 2008. He claimed to have filed a notice of change of Advocates which I do not see in this case Court file. In the circumstances therefore all that Mr. Mugire told me during the hearing of this Notice of Motion is not only hearsay but also stated by an incompetent Advocate and therefore of no legal effect upon what Counsel for the Applicant told me.
Accordingly, the Notice of Motion dated 31st October 2007 is hereby granted as prayed.
Dated and Delivered at Nairobi this 21st day of February 2008.
J.M. KHAMONI
JUDGE