[2009] KEHC 3110 (KLR)
The court found that although there had been delays in prosecuting the suit, a consent to withdraw the previous application for dismissal had been entered but not properly recorded or signed by the Deputy Registrar. The court held that, given the procedural irregularities and the fact that a full twelve months had...
Source-derived case information.
- Citation
- [2009] KEHC 3110 (KLR)
- Parties
- Plaintiff: Jaswinder Singh Sehmi T/A Bridge Motors; Defendant: Margaret Ogutu Rono; Defendant: Mathew Rono
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 11 of 2000
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal not granted; suit to proceed to pre-trial and hearing.
- Legal Topics
- Dismissal for Want of Prosecution, Notice to Show Cause, Motor Vehicle Accident, Personal Injury, Special Damages, Pre Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jaswinder Singh Sehmi T/A Bridge Motors
Plaintiff
Margaret Ogutu Rono
Defendant
Mathew Rono
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Should the suit be dismissed for want of prosecution by the plaintiff under Order 16 Civil Procedure Rules?
- 2 Has there been inordinate and inexcusable delay in prosecuting the suit?
- 3 Was the consent to withdraw the previous application for dismissal properly recorded and effective?
Ratio Decidendi
The court found that although there had been delays in prosecuting the suit, a consent to withdraw the previous application for dismissal had been entered but not properly recorded or signed by the Deputy Registrar. The court held that, given the procedural irregularities and the fact that a full twelve months had not expired since the last action, it would not be just to dismiss the suit at this stage. The Deputy Registrar was directed to investigate the court file records and the actions of the registry staff. The application for dismissal was not granted, and the suit was ordered to proceed to pre-trial and hearing.
Court Disposition
Application for dismissal not granted; suit to proceed to pre-trial and hearing.
Orders
- Deputy Registrar to investigate the court file records and the actions of the registry staff regarding the consent order of 29.5.08.
- Suit to be set down for pre-trial and hearing.
Full Case Text
Judgment text and source record
113 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Civil Case 11 of 2000
1. Civil Practice and Procedure
2. O16 r 2 Civil Procedure Rules
i) Notice to show cause why suit should not be dismissed for non-attendance.
3. Subject of main suit: - Running down case.
i) Cause of action 14. 2.95
ii) Motor vehicle collision between two vehicles
iii) Injuries
a) Bruises on head
b) dislocation of right shoulder
c) Swollen right knee joint.
iv) costs of repair of motor vehicle
v) special damages
vi) Suit filed 8. 3.00.
I: Plaintiff changes advocates three times
a) Karigo Korir & co. advocates
b) C.K. Korir & Co. advocates
c) A.C. Bett & Co. advocates
II: Defendants changes advocate no notice of change on file
Onyancha Bwomote & Co. advocates
Nyairo Orayo & Co. advocates
4. Application to dismiss suit for want of prosecution
a) Dated 15. 5.00 and filed on 25. 5.00
b) 29. 6.07 and filed on 3. 7.07
5. Parties enter into consent 29. 5.08 application withdrawn with throw away costs 3,000/=
6. 11. 3.09 – Suo moto by Court Notice to show cause why suit should not be dismissed under order 16 cpr.
7. The respondent/Defendant argues suit be dismissed for no action being taken.
8. The plaintiff prays more time be given. Leave of court was issued.
9. Held – Consent field 25. 5.08 but
a) not recorded by Deputy Registrar
And still remains unsigned
Deputy Registrar to investigate.
c. That 12 file notes not complete from 29. 5.08.
d. The NTSC accepted.
10. Last – Leave – to file application for dissimal. Suit to go for pre trials and hearing.
11. Case Law –Nil
12. Advocates
J.R.Kimetto advocate instructed by the firm of M/s. Bett & Co. Advocates for the Plaintiff-present
F.N.Orora instructed by the firm of M/s. F.N.Orora & Co. Advocates for the Defendant-present
JASWINDER SINGH SEHMI
T/A BRIDGE MOTORS ……………………..............………………. PLAINTIFF
VERSUS
MARGARET OGUTU RONO ………....…….................…… 1ST DEFENDANT
MATHEW RONO ……………………..........…................……...2ND DEFENDANT
RULING
I: Procedure
1. Should this suit be dismissed for want of prosecution by the Plaintiff?
2. The subject of the main suit is running down. The cause of action arose on 14th February, 1995 arising from a motor vehicle collision between two motor vehicles.
3. The Plaintiff sustained injuries to i) his head ii) bruises dislocation to the right shoulder and iii) a swollen right knee joint.
4. He also claimed the cost of repair to his motor vehicle and special damages claim – NOT pleaded.
5. The suit was filed on 8th March, 2000.
6. The Plaintiff changed his advocate three times.
i) M/S Karigo Korir & Co. advocates
ii) C.K. Korir & Co. advocates
iii) A.C. Bett & Co. advocates
7. The defendant changes his advocate twice
i) M/S Onyacha Bwomote & Co. advocates
ii)Nyairo Orayo & Co. advocates (uncertain if notice of change filed)
8 Twice application for dismissal of suit for lack of prosecution was filed:-
i) Dated 15. 5.00 filed on25. 5.00.
ii) 29. 6.07 and filed 3. 7.07.
9. The latter application, the parties entered into consent on 29. 5.08 for the application to be withdrawn with throw away costs of Kshs. 3,000/=. No record made on Court file.
10. On 11. 3.09, suo moto by court, a notice to show cause why the suit should not be dismissed.
11. The registry recorded a consent after court had given orders but not signed by the Deputy Registrar.
III: Arguments by parties.
12. The defendant argues suit be dismissed as no action has been taken.
13. The Plaintiff prays more time be given. Leave of court was issued.
IV: Held – The Deputy Registrar to investigate records of court file 29. 5.08 and the clerk concerned.
If per chance he said recording was correct a full twelve (12) months have not expired. The application not granted. Suit be set down for pre trial and hearing.
DATED this 15th day of June, 2009 at KERICHO
JUDGE
JASWINDER SINGH SEHMI
T/A BRIDGE MOTORS ……………………………………. PLAINTIFF
VERSUS
1. MARGARET OGUTU RONO ………………… 1ST DEFENDANT
2 MATHEW RONO ……………………………...2ND DEFENDANT
RULING
I: Procedure
1. Should this suit be dismissed for want of prosecution by the Plaintiff?
2. The subject of the main suit is running down. The cause of action arose on 14th February, 1995 arising from a motor vehicle collision between two motor vehicles.
3. The Plaintiff sustained injuries to i) his head ii) bruises dislocation to the right shoulder and iii) a swollen right knee joint.
4. He also claimed the cost of repair to his motor vehicle and special damages claim – NOT pleaded.
5. The suit was filed on 8th March, 2000.
6The Plaintiff changed his advocate three times.
i) M/S Karigo Korir & Co. advocates
ii) C.K. Korir & Co. advocates
iii) A.C. Bett & Co. advocates
7. The defendant changes his advocate twice
i) M/S Onyacha Bwomote & Co. advocates
ii)Nyairo Orayo & Co. advocates (uncertain if notice of change filed)
8. Twice application for dismissal of suit for lack of prosecution was filed:-
i) Dated 15. 5.00 filed on25. 5.00.
ii) 29. 6.07 and filed 3. 7.07.
9. The latter application, the parties entered into consent on 29. 5.08 for the application to be withdrawn with throw away costs of Kshs. 3,000/=. No record made on Court file.
10. On 11. 3.09, suo moto by court, a notice to show cause why the suit should not be dismissed.
11. The registry recorded a consent after court had given orders but not signed by the Deputy Registrar.
III: Arguments by parties.
12. The defendant argues suit be dismissed as no action has been taken.
13. The Plaintiff prays more time be given. Leave of court was issued.
IV: Held – The Deputy Registrar to investigate records of court file 29. 5.08 and the clerk concerned.
If per chance he said recording was correct a full twelve (12) months have not expired. The application not granted. Suit be set down for pre trial and hearing.
DATED this 15th day of June, 2009 at KERICHO
JUDGE
M.A. ANG’AWA
Advocates
J.R.Kimetto advocate instructed by the firm of M/s. Bett & Co. Advocates for the Plaintiff-present
F.N.Orora instructed by the firm of M/s. F.N.Orora & Co. Advocates for the Defendant-present
Advocates
J.R.Kimetto advocate instructed by the firm of M/s. Bett & Co. Advocates for the Plaintiff-present
F.N.Orora instructed by the firm of M/s. F.N.Orora & Co. Advocates for the Defendant-present