[2012] KEHC 5027 (KLR)
The court found that the suit had been dormant since 16/4/2010 and that the plaintiff had not taken any steps to prosecute the matter since the last ruling. Exercising its discretion under Order 17 Rule (1) of the Civil Procedure Rules, the court determined that it was appropriate to issue a notice to show cause to...
Source-derived case information.
- Citation
- [2012] KEHC 5027 (KLR)
- Parties
- Plaintiff: HEMA INVESTMENTS LTD; Defendant: SPENCON (K) LIMITED
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 227 of 1997
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Notice to show cause to be issued to the plaintiff.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Notice to Show Cause, Court Discretion, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
HEMA INVESTMENTS LTD
Plaintiff
SPENCON (K) LIMITED
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction by the plaintiff.
- 2 Whether the court should issue a notice to show cause to the plaintiff under Order 17 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the suit had been dormant since 16/4/2010 and that the plaintiff had not taken any steps to prosecute the matter since the last ruling. Exercising its discretion under Order 17 Rule (1) of the Civil Procedure Rules, the court determined that it was appropriate to issue a notice to show cause to the plaintiff, requiring them to explain why the suit should not be dismissed for want of prosecution. The court directed the Deputy Registrar to issue the notice accordingly.
Court Disposition
Notice to show cause to be issued to the plaintiff.
Orders
- A notice to show cause shall be issued to the plaintiff pursuant to Order 17 Rule (1) of the Civil Procedure Rules.
- The Deputy Registrar is directed to issue the notice to show cause to the plaintiff to explain why the suit should not be dismissed for want of prosecution.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO. 227 OF 1997
HEMA INVESTMENTS LTD………………………....PLAINTIFF
VERSUS
SPENCON (K) LIMITED……………………...……DEFENDANT
RULING
Before me is the Notice of Motion dated 20/7/2012, brought ex-parte in which the defendant/applicant prays that the court do issue a notice in writing to the plaintiff to show cause why this suit cannot be dismissed for want of prosecuting. The application is brought pursuant to Order 17 Rules 2(1) and 3 and Order 51 Rule (1) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The grounds upon which it is made is that it is over one year since the plaintiff set down this suit for hearing. That on 16/4/2010 J. Ouko dismissed the defendant’s application and to date the plaintiff has not moved to prosecute the suit. Mr. Mahida, counsel for the applicant urged that the cause of action arose in 1995; the suit was filed in 1997 and that under Order 17(1) of the Civil Procedure Rules, only the court can move on its own motion to issue a notice to show cause but under Order 17(3)a party can move the court to issue a notice to show cause on the plaintiff.
I have perused the file and I do notice that the last time that this matter was in court is the 16/4/2010 when J. Ouko read his ruling in this matter. It is a matter filed in 1997 and in exercise of this court’s discretion, I hereby order that a notice to show cause do issue on the plaintiff, pursuant to Order 17 Rule (1) of the Civil Procedure Rules. The same be issued by the Deputy Registrar to show cause why the suit cannot be dismissed for want of prosecution. It is so ordered.
DATED and DELIVERED this 28th day of March, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
N/A for the plaintiff
Mr. Njuguna holding brief for Mr. Mahida for the defendant
Kennedy – Court Clerk