[2022] KEHC 256 (KLR)
The court declined to dismiss the suit for want of prosecution at this stage, noting that the Plaintiff had filed an application asserting that the debt had been settled and that the Bank had agreed to release the title documents upon payment. The court found that there was clear correspondence indicating a possible...
Source-derived case information.
- Citation
- [2022] KEHC 256 (KLR)
- Parties
- Plaintiff: International Business Development Solutions Limited; Defendant: Family Bank Limited; Defendant: Viewline Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case 395 of 2018
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss for Want of Prosecution and Related Application for Release of Title Documents
- Outcome
- Notice of Motion to dismiss suit adjourned; both applications to be heard together with directions for further affidavits and submissions.
- Judges
- DAS Majanja
- Legal Topics
- Dismissal for Want of Prosecution, Compromise of Suit, Release of Security Documents, Settlement of Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
International Business Development Solutions Limited
Plaintiff
Family Bank Limited
Defendant
Viewline Auctioneers
Defendant
Procedural Posture
Civil Case / Ruling on Application to Dismiss for Want of Prosecution and Related Application for Release of Title Documents
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 rule 2 of the Civil Procedure Rules.
- 2 Whether the Plaintiff's application for release of title documents should be considered in light of alleged settlement.
- 3 Whether the suit has been compromised under Order 25 rule 5 of the Civil Procedure Rules.
Ratio Decidendi
The court declined to dismiss the suit for want of prosecution at this stage, noting that the Plaintiff had filed an application asserting that the debt had been settled and that the Bank had agreed to release the title documents upon payment. The court found that there was clear correspondence indicating a possible compromise of the suit and that justice required giving the Defendants an opportunity to respond to the Plaintiff's claims. The court held that it had jurisdiction to determine whether the suit had been compromised and ordered that both applications be heard together, with directions for filing affidavits and submissions. The court emphasized the need to resolve the matter on...
Court Disposition
Notice of Motion to dismiss suit adjourned; both applications to be heard together with directions for further affidavits and submissions.
Orders
- The Notice of Motion dated 15th May 2020 is adjourned and shall be heard together with the Notice of Motion dated 26th October 2020.
- The 1st Defendant shall file and serve its replying affidavit within 14 days from the date hereof.
Full Case Text
Judgment text and source record
22 paragraphs
International Business Development Solutions Limited v Family Bank Limited & another (Commercial Civil Case 395 of 2018) [2022] KEHC 256 (KLR) (Commercial and Tax) (25 March 2022) (Ruling)
Neutral citation: [2022] KEHC 256 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial Civil Case 395 of 2018
DAS Majanja, J
March 25, 2022
Between
International Business Development Solutions Limited
Plaintiff
and
Family Bank Limited
1st Defendant
Viewline Auctioneers
2nd Defendant
Ruling
1. The 1st Defendant (‘’the Bank’’) has filed a Notice of Motion dated 15th May 2020 seeking to dismiss the suit for want of prosecution under, inter alia, Order 17 rule 2 of the Civil Procedure Rules. It is supported by the affidavit of David Onsare, the Bank’s advocate on record, sworn on 15th May 2019. The thrust of the application and deposition is that despite filing the suit and application for injunction under certificate of urgency, the Plaintiff has failed and or neglected to take steps not only to prosecute the suit but also the application for injunction it had filed. Further that the suit has been fixed for hearing several times and the Plaintiff has failed to take steps to prosecute the suit. That the last time the matter was in court was on 4th June 2020 and since then, the Plaintiff has failed to prosecute the suit.
2. The application was not opposed and was in fact reserved for ruling on 20th November 2020 but for some reason the file was not brought to the court’s attention. Before that date, the Plaintiff filed the Notice of Motion dated 26th October 2020 seeking an order deferring the ruling pending determination of a prayer, ‘’THAT this Honourable Court be pleased to issue an order directing the 1st Defendant/Respondent to unconditionally release the Plaintiff/Applicant’s title documents in its possession.’’ The application is supported by the affidavit of Plaintiff’s director, Joseph Mwangi Gichuki, sworn on 26th October 2020. According to the deposition, the Plaintiff states that it was unable to prosecute the suit as it elected to engage the Bank directly and in that regard, it made an offer to the Bank through Kamunye Gichigi and Company Advocates by a letter dated 13th November 2018 seeking to pay KES. 10,330,446. 36 to clear the outstanding debt. That in response, the Bank did write to the Plaintiff’s advocate confirming that upon payment of KES. 11,564,029. 83, it would unconditionally release the title documents to the Plaintiff. It states that the amount was in fact paid but the Bank refused to release the documents as agreed.
3. The question for the resolution is whether the court should dismiss the suit for want of prosecution. I agree with the counsel for the Plaintiff that the Defendants did not oppose the application but should the court for that reason alone allow the application? The court cannot ignore the application filed by the Plaintiff in which it contends it settled the matter with the Bank. There is clear correspondence between the Plaintiff’s counsel and the Bank resolving the debt. In order to do justice to the parties, I decline to dismiss the suit for want of prosecution at this stage but to give the Defendants an opportunity to show that the issue of indebtedness has been resolved bearing in mind that the issue arose at the time the suit was filed.
4. The Plaintiff’s application dated 26th October 2020 seems to suggest that the suit has been now been compromised. This court has jurisdiction to determine whether the suit has been compromised under Order 25 rule 5 of the Civil Procedure Rules and make an order accordingly. When the matter came up for mention I advised the parties to attempt to resolve the matter amicably in view of the material on record.
5. In the circumstances, I now make the following orders:a.The Notice of Motion dated 15th May 2020 is adjourned and shall be heard together with the Notice of Motion dated 26th October 2020. **b.The 1st Defendant shall file and serve its replying affidavit within 14 days from the date hereof.c.The Plaintiff shall be at liberty to file and serve a supplementary affidavit within 7 days from the date of service of the replying affidavit.d.The parties shall file and exchange written submissions not exceeding 3 pages.e. The matter shall be fixed for mention to take a ruling date.
SIGNED AT NAIROBID. S. MAJANJAJUDGEDATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF MARCH 2022. A. MABEYAJUDGECourt of Assistant: Mr M. OnyangoMr Papai instructed by EP Advocates for the Plaintiff.Mr Onsare instructed by Maina and Onsare Partners Advocates for the 1st Defendant.