[2015] KEHC 137 (KLR)
The court found that the dismissal of the suit was improper as no notice to show cause was issued to the plaintiff, denying them an opportunity to be heard. The court also noted that the plaintiff had been actively seeking to fix the matter for hearing but was unable to do so due to the registry's unavailability of...
Source-derived case information.
- Citation
- [2015] KEHC 137 (KLR)
- Parties
- Plaintiff: Jeremiah Matoke; Defendant: Kenya Commercial Bank Limited; Defendant: William Wilhite Anyenda
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 290 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Amend Plaint and Reinstatement After Dismissal
- Outcome
- Application allowed as prayed with costs in the cause.
- Judges
- DO Ogembo
- Legal Topics
- Amendment of Pleadings, Dismissal for Want of Prosecution, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Matoke
Plaintiff
Kenya Commercial Bank Limited
Defendant
William Wilhite Anyenda
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Amend Plaint and Reinstatement After Dismissal
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint.
- 2 Whether the dismissal of the suit for want of prosecution was proper in the absence of notice to the plaintiff.
- 3 Whether the amended plaint should be deemed as properly filed with leave of the court.
Ratio Decidendi
The court found that the dismissal of the suit was improper as no notice to show cause was issued to the plaintiff, denying them an opportunity to be heard. The court also noted that the plaintiff had been actively seeking to fix the matter for hearing but was unable to do so due to the registry's unavailability of dates. In light of these circumstances, the court held that the application for leave to amend the plaint was merited and that the amended plaint should be deemed as properly filed with leave of the court. The application was therefore allowed as prayed, with costs in the cause.
Court Disposition
Application allowed as prayed with costs in the cause.
Orders
- Leave is granted to the plaintiff to amend the plaint in terms of the amended plaint filed herein.
- The amended plaint filed is deemed to have been filed with leave of the court.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL &ADMIRALTY DIVISION
CIVIL CASE NO. 290 OF 2002
JEREMIAH MATOKE ::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LIMITED ::::::::::: 1ST DEFENDANT
WILLIAM WILHITE ANYENDA ::::::::::::::::::::::::: 2ND DEFENDANT
R U L I N G
The Notice of Motion application before the court is dated 20th August 2015 field by the Plaintiff/Applicant. The applications seeks the following orders:-
Leave be granted to the Plaintiff to amend the Plaint in terms of the amended Plaint filed herein.
The Amended Plaint duly field be deemed to have been filed with leave of the corut.
Costs of the this application be in the cause.
The application is premised on the grounds set out therein and is supported by the affidavit of Namda Simoni sworn on 20th August 2015.
In brief, the Applicant’s case is that the suit herein was dismissed on 16th June 2015. That at the time of dismissing this suit, there was no Notice issued to the Applicant to show cause why the suit should not be dismissed. The last orders and action on this file was by Justice Odunga who delivered a Ruling on the 19th December 2014 allowing amendment of the Plaint. Thereafter the Applicant has all along sought to fix the matter for hearing but the registry advised that no dates were available. In the circumstances, the case was not one that should have been put up for dismissal for want of prosecution.
The application is not opposed.
I have considered the application. It is merited based on the grounds and the supporting affidavit. The same is allowed as prayed with costs in the cause.
Orders accordingly.
READ, DELIVERED AND DATED, AT NAIROBI
THIS 4TH DAY OF DECEMBER 2015.
E. K. O. OGOLA
JUDGE
PRESENT:
M/s. Kiduduhuu h/b for Namanda for the Plaintiff
M/s. Keino for the 1st Defendant
Teresia – Court Clerk