[2020] KEHC 2315 (KLR)
The court found that the suit had already stood dismissed by operation of a prior court order dated 22nd February, 2017, which required prosecution within 120 days failing which the suit would stand dismissed. There was no evidence that this order had been set aside or varied, nor that the suit was prosecuted within...
Source-derived case information.
- Citation
- [2020] KEHC 2315 (KLR)
- Parties
- Plaintiff: Insurance Company of East Africa Limited; Defendant: Ernest Jacob Kisaka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 717 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application to Reinstate Suit After Dismissal
- Outcome
- application dismissed with costs to the respondent
- Judges
- LM Njuguna
- Legal Topics
- Dismissal of Suit, Reinstatement of Suit, Court Orders, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Insurance Company of East Africa Limited
Plaintiff
Ernest Jacob Kisaka
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Reinstate Suit After Dismissal
Legal Issues
- 1 Whether the suit could be reinstated after dismissal for want of prosecution.
- 2 Whether the order of dismissal made on 28th January, 2020 could be set aside.
- 3 Whether there existed a suit capable of being reinstated as at the date of the application.
Ratio Decidendi
The court found that the suit had already stood dismissed by operation of a prior court order dated 22nd February, 2017, which required prosecution within 120 days failing which the suit would stand dismissed. There was no evidence that this order had been set aside or varied, nor that the suit was prosecuted within the stipulated period. As such, there was no suit capable of being reinstated as at the date of the application. The application to reinstate the suit and set aside the dismissal order was therefore an abuse of the court process and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 24th February, 2020 is dismissed with costs to the respondent.
- The respondent is awarded the costs of the suit.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 717 OF 2007
INSURANCE COMPANY OF
EAST AFRICA LIMITED......................................PLAINTIFF/APPLICANT
VERSUS
ERNEST JACOB KISAKA.............................DEFENDANT/RESPONDENT
RULING
The plaintiff/applicant has moved this court by way of the Notice of Motion dated the 24th February, 2020 seeking to re-instate the suit and set aside the order of dismissal made on the 28th January, 2020.
The application is supported by the annexed affidavit sworn by Harriet Akwissa Advocate, on the 24th February, 2020. In the said affidavit she avers that on the 28th January, 2020, she had to take her sick husband to hospital and since she was the only associate in the firm of Njeri Kariuki Advocate, which is on record for the plaintiff, she called a pupil at the 11th hour and instructed her to attend court and seek an adjournment through as advocate.
She averred that regrettably, the matter had already been dismissed being an old matter where the court had granted the plaintiff a last adjournment. She states that the events that led to the dismissal of the suit were entirely beyond her control and the plaintiff should not be penalized for mistake of counsel.
In the replying affidavit sworn by Ernest Jacob Kisaka on the 16th day of June, 2020, he depones that there has been unexplained inordinate delay in filing the application herein. According to him, the plaintiff has never been ready or keen to prosecute the suit. He further deponed that the firm of Njeri Kariuki has more than three (3) advocates who would have been available to handle the matter on the 28th January, 2020 when the same was dismissed.
The application was disposed off by way of written submissions which the court has considered together with the affidavits both in support of and in opposition to the application.
Though the plaintiff has urged the court to reinstate the suit, the defendant raised a fundamental issue on whether there exists a suit that can be reinstated. He brought the attention of the court to its order that it made on the 22nd February, 2017 in which it had ordered that the suit be prosecuted within (120) days failing which it would stand dismissed. This court can confirm from the record that the said order was made on the material date and it is on record.
Upon further perusal of the record there is no indication that the order was either set aside and/or varied. It is also clear that the suit was not prosecuted within the stipulated period of (120) days and therefore, the suit stood dismissed upon expiry of the (120) days ordered by the court.
In the circumstances foregoing, there was no suit capable of dismissal as at 28th January, 2020 when the order sought to be set aside was made and therefore the application dated 24th February, 2020 is an abuse of the court process. The same is hereby dismissed with costs to the respondent. The respondent is also awarded the costs of the suit.
Orders accordingly.
Dated, Delivered and signed at Nairobi this 15th day of October, 2020.
..........................
L. NJUGUNA
JUDGE
In the presence of:
....................for the Plaintiff
.................for the Defendant