[2005] KEHC 2391 (KLR)
The court held that once a suit is dismissed under Order 16 rule 6 of the Civil Procedure Rules, the only lawful procedure is for the plaintiff to file a fresh suit. The purported reinstatement by Ole Keiwua J did not confer jurisdiction on the court to proceed with the original suit. The court emphasized that it...
Source-derived case information.
- Citation
- [2005] KEHC 2391 (KLR)
- Parties
- Plaintiff: James Imbwaga Shiyoya; Defendant: Stephen Njoroge & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 4664 of 1987
- Procedural Posture
- Civil Suit / Ruling on Reinstatement and Jurisdiction
- Outcome
- suit dismissed for want of jurisdiction
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Imbwaga Shiyoya
Plaintiff
Stephen Njoroge & Others
Defendant
Procedural Posture
Civil Suit / Ruling on Reinstatement and Jurisdiction
Legal Issues
- 1 Whether the court has jurisdiction to proceed with a suit reinstated after dismissal under Order 16 rule 6 of the Civil Procedure Rules.
- 2 Whether reinstatement of a suit dispenses with the requirement to file a fresh suit after dismissal for want of prosecution.
Ratio Decidendi
The court held that once a suit is dismissed under Order 16 rule 6 of the Civil Procedure Rules, the only lawful procedure is for the plaintiff to file a fresh suit. The purported reinstatement by Ole Keiwua J did not confer jurisdiction on the court to proceed with the original suit. The court emphasized that it cannot move or set aside the orders of another judge unless by proper application or appeal. As the plaintiff had not filed a fresh suit and the limitation period may apply, the court lacked jurisdiction to hear the matter. Consequently, the suit was dismissed and costs awarded to the defendant.
Court Disposition
suit dismissed for want of jurisdiction
Orders
- The suit is dismissed for want of jurisdiction.
- Costs of the suit are awarded to the defendant.
Full Case Text
Judgment text and source record
18 paragraphs
1) Civil Practice and Procedure
2) Suit Dismissed under order 16 r 6 CPR
3) The court reinstated suit on 20. 3.98 ,Ole Keiwua,J
4) Held Order 16 r 6 CP require a fresh suit to be filed
5) Case law – Nil
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Civil Case 4664 of 1987JAMES IMBWAGA SHIYOYA …………………..…………….PLAINTIFF VERSUS STEPHEN NJOROGE & OTHERS ………….….……DEFENDANTS RULINGOn the 26th of June 1996 Hon. Justice Kuloba in exercise of administrative powers given under Order 16 r 6 CPR that reads-
Hon. Kuloba J dismissed this suit. Two years later the plaintiff appeared before Ole Keiwua J (as he then was) and applied for the suit to be reinstated for hearings. This was granted by the said Hon. Judge.
The question now arises as to whether those said orders gives this court jurisdiction to proceed to hearings with this suit.
The procedure required that the said plaintiff do file a fresh suit for hearings. Thereafter the suit should have proceeded in a fresh file.
In this case the law requires a fresh suit, the discretion of dismissal having been given by Kuloba, J.
I on the other hand cannot move the orders of Ole Keiwua J unless an application to so do or appeal to the court of appeal is made.
The orders once removed would necessitate the applicant /plaintiff to apply for leave to file suit out of the required time and if allowed file a fresh suit.
The position in law is that this court has no jurisdiction to hear this matter as reinstating the same gives no jurisdiction to this court unless the Limitation of actions is complied with in a fresh suit. I dismiss this suit.
I award the costs of this suit to the defendant.
Dated this 12th day of May, 2005 at Nairobi.
M.A. ANG’AWAJUDGE
Khamati Minishi & Co. Advocates for the plaintiff Guram & Co. Advocates & Co. for the defendant