[2005] KEHC 3124 (KLR)
The court held that Rule 4 of Order 24 of the Civil Procedure Rules could not be invoked because the previous suit between the parties was not discontinued by the plaintiff but was struck out by order of the court. Furthermore, the costs in the previous suit had already been paid as confirmed by the court....
Source-derived case information.
- Citation
- [2005] KEHC 3124 (KLR)
- Parties
- Plaintiff: Ishmael Kagunyi Thande; Defendant: Housing Finance Company of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 336 of 2003
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- Application dismissed with no order as to costs.
- Judges
- DW Mbuteti
- Legal Topics
- Discontinuance of Suit, Costs of Previous Suit, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ishmael Kagunyi Thande
Plaintiff
Housing Finance Company of Kenya Limited
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether Rule 4 of Order 24 of the Civil Procedure Rules applies where the previous suit was struck out rather than discontinued.
- 2 Whether the defendant is entitled to a stay of the present suit pending payment of costs from the previous suit.
Ratio Decidendi
The court held that Rule 4 of Order 24 of the Civil Procedure Rules could not be invoked because the previous suit between the parties was not discontinued by the plaintiff but was struck out by order of the court. Furthermore, the costs in the previous suit had already been paid as confirmed by the court. Therefore, the defendant's application for a stay of the present suit pending payment of costs was without merit and was dismissed.
Court Disposition
Application dismissed with no order as to costs.
Orders
- The defendant's application by notice of motion dated 25th June, 2004 is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL DIVISION, MILIMANI
Civil Case 336 of 2003
ISHMAEL KAGUNYI THANDE………………………………..…….PLAINTIFF
VERSUS
HOUSING FINANCE COMPANY OF KENYA LIMITED………DEFENDANT
R U L I N G
Rule 4 of Order 24 of the Civil Procedure Rules (the Rules) provides that if any subsequent suit shall be brought before payment of the costs of a discontinued suit upon the same or substantially the same cause of action the court may order a stay of such subsequent suit until such costs shall have been paid.
In the present case it is clear that the previous suit, HCCC No. 896 of 2000, which was between the same parties upon substantially the same cause of action, was not discontinued by the Plaintiff herein, who was also the plaintiff in that previous suit. It was struck out by order of the court. Rule 4 aforesaid cannot therefore be properly invoked. In any event, consequent upon subsequent proceedings and orders herein, especially the order entered on 21st June, 2005, the court was informed on 19th July, 2005 that the costs in the previous suit have since been paid.
As the application by notice of motion dated 25th June, 2004 (in which the Defendant sought an order to stay the present suit pending payment by the Plaintiff of the costs in the previous suit) has not been withdrawn it is hereby dismissed with no order as to costs. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF JULY, 2005.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 22ND DAY OF JULY, 2005.