[2012] KEHC 5740 (KLR)
The court declined to dismiss the suit for want of prosecution because the Notice to Show Cause was not on record and there was no evidence that all parties had been served. The absence of an affidavit of service created sufficient doubt as to whether the procedural requirements for dismissal had been met....
Source-derived case information.
- Citation
- [2012] KEHC 5740 (KLR)
- Parties
- Plaintiff: James Raymond Njenga; Plaintiff: James Njenga; Defendant: Salav Dean; Defendant: Mrs. Salav Dean; Defendant: Mr. Z. I. Dean; Defendant: Mrs. Z. I. Dean; Defendant: Mrs. Nadia Dean Butt; Defendant: Mrs. Nargi Dean; Defendant: Aziz Haiderali Jessa; Defendant: Marinanne Prediger Dean
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 213 of 2009
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- application for dismissal declined; suit to proceed
- Judges
- DO Ogembo
- Legal Topics
- Dismissal for Want of Prosecution, Service of Process, Shareholder Rights, Joint Venture Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Raymond Njenga
Plaintiff
James Njenga
Plaintiff
Salav Dean
Defendant
Mrs. Salav Dean
Defendant
Mr. Z. I. Dean
Defendant
Mrs. Z. I. Dean
Defendant
Mrs. Nadia Dean Butt
Defendant
Mrs. Nargi Dean
Defendant
Aziz Haiderali Jessa
Defendant
Marinanne Prediger Dean
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
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 all parties were properly served with the Notice to Show Cause.
- 3 Whether the nature of the dispute warrants a hearing on the merits despite procedural lapses.
Ratio Decidendi
The court declined to dismiss the suit for want of prosecution because the Notice to Show Cause was not on record and there was no evidence that all parties had been served. The absence of an affidavit of service created sufficient doubt as to whether the procedural requirements for dismissal had been met. Furthermore, the court considered the substantive nature of the dispute, involving shareholder rights in a joint development company, and determined that dismissing the suit without a hearing on the merits would leave critical issues unresolved. The court therefore ordered that pre-trial proceedings be concluded within 60 days to expedite the matter.
Court Disposition
application for dismissal declined; suit to proceed
Orders
- The application for dismissal for want of prosecution is declined.
- Parties are directed to conclude pre-trial proceedings within 60 days.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
Civil Case 213 of 2009
JAMES RAYMOND NJENGA.........................................................1ST PLAINTIFF
JAMES NJENGA.............................................................................2ND PLAINTIFF
- VERSUS -
SALAV DEAN...............................................................................1ST DEFENDANT
MRS. SALAV DEAN...................................................................2ND DEFENDANT
MR. Z. I. DEAN.............................................................................3RD DEFENDANT
MRS. Z. I. DEAN............................................................................4TH DEFENDANT
MRS. NADIA DEAN BUTT.............................................................5TH DEFENDANT
MRS. NARGI DEAN.......................................................................6TH DEFENDANT
AZIZ HAIDERALI JESSA ...............................................................7TH DEFENDANT
MARINANNE PREDIGER DEAN.....................................................8TH DEFENDANT
R U L I N G
1. Before the court is alleged to be a Notice to Show Cause why this suit should not be dismissed under Order 17 Rule 2 of the Civil Procedure Rules. I have perused the record and I am unable to locate the particular Notice to Show Cause and so I am unable to know when it was dated. However, the Plaintiffs and two of the 8 Defendants have responded to the application. This means that they were served and became aware of the same. However, it may also mean that the rest of the Defendants were never served with the said Notice to Show Cause. There is no affidavit of service on record.
2. While the two Plaintiffs have opposed the application, the 1st and the personal representative of the 7th Defendant support the dismissal of this suit for want of prosecution.
3. I have noted that this is a very old suit which commenced in 1991 at the High Court in Nairobi, and was in 2009 transferred to this Commercial Division. I have also looked at the claim. It is an old claim revolving around shareholder rights in a joint development company. At least one Defendant has since passed away, while at least one Defendant is alleged to be permanently out of the country.
I have carefully considered the alleged Notice to Show Cause. Firstly, it does not appear on court records. Secondly, there is no evidence that all the parties were served. On this ground alone, there is sufficient doubt on the merit of the Notice to Show Cause and I would decline to dismiss the suit.
4. However, and more importantly, the nature of the case is such that if the suit is not concluded on its merit there would still be many issues left hanging regarding the shareholding rights in the joint project company.
5. With these issues in mind I decline to dismiss the suit. However, I direct that the parties should conclude pre-trial proceedings in this matter within the next 60 days. The matter will be mentioned on5th October 2012 for further directions.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBI
THIS 26TH DAY OF JULY 2012
E. K. O. OGOLA
JUDGE
PRESENT:
P.M. Kamaara for the Plaintiff
Arum H/B for Muyeto for the Defendants
Teresia – Court Clerk