[2019] KEHC 8496 (KLR)
The court found that there was no evidence of service of Notice to Show Cause before the dismissal of the suit. This failure to comply with Order 17 rule 2(1) of the Civil Procedure Rules rendered the dismissal irregular. Consequently, the court allowed the application for review and set aside the dismissal order,...
Source-derived case information.
- Citation
- [2019] KEHC 8496 (KLR)
- Parties
- Plaintiff: Issac Mutuku Nzuma; Plaintiff: Esther Mwethya Mutuku; Defendant: Christine Waguthi Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 584 of 2008
- Procedural Posture
- Civil Application / Ruling on Application for Review and Reinstatement of Suit
- Outcome
- Application allowed. Dismissal order set aside. Suit reinstated.
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Notice to Show Cause, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Issac Mutuku Nzuma
Plaintiff
Esther Mwethya Mutuku
Plaintiff
Christine Waguthi Kariuki
Defendant
Procedural Posture
Civil Application / Ruling on Application for Review and Reinstatement of Suit
Legal Issues
- 1 Whether the dismissal of the suit for want of prosecution without service of Notice to Show Cause was proper.
- 2 Whether the suit should be reinstated for hearing and determination on merits.
Ratio Decidendi
The court found that there was no evidence of service of Notice to Show Cause before the dismissal of the suit. This failure to comply with Order 17 rule 2(1) of the Civil Procedure Rules rendered the dismissal irregular. Consequently, the court allowed the application for review and set aside the dismissal order, reinstating the suit for hearing and determination on its merits.
Court Disposition
Application allowed. Dismissal order set aside. Suit reinstated.
Orders
- The order issued on 22nd June, 2016 dismissing the Plaintiffs' suit for want of prosecution is reviewed and set aside.
- The suit is reinstated for hearing and determination on merits.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 584 OF 2008
ISSAC MUTUKU NZUMA...........................1ST PLAINTIFF/APPLICANT
ESTHER MWETHYA MUTUKU...............2ND PLAINTIFF/APPLICANT
VERSUS
CHRISTINE WAGUTHI KARIUKI............DEFENDANT/RESPONDENT
RULING
1. The application dated 14th December, 2017 seeks orders that the order issued by this court on 22nd June, 2016 dismissing the Plaintiffs suit for want of prosecution be reviewed and set aside.
2. Secondly that the suit be reinstated for hearing and determination on merits.
3. It is stated in the grounds and the affidavit in support of the application that the suit herein was dismissed on 22nd June, 2016 for want of prosecution without service of Notice to Show Cause. That the deceased died in a road traffic accident and the parties were engaged in negotiations with a view to settling the matter.
4. The application was heard exparte by way of written submissions. There was no entry of appearance by the Defendant.
5. I have considered the application and the submissions made.
6. I have perused the court file. There is no evidence of service of Notice to Show Cause before the dismissal of the suit. Order 17 rule 2(1) was therefore not compiled with.
7. Consequently, I allow the application as prayed.
Dated, signed and delivered in Nairobi this 28th day of March, 2019
B. THURANIRA JADEN
JUDGE