[2014] KEHC 342 (KLR)
The court found that the applicant was not served with the dismissal order and only became aware of it much later. The applicant had taken steps to prosecute the suit by filing a list of witnesses, indicating an intention to proceed. In the interest of justice, the court exercised its discretion to allow the...
Source-derived case information.
- Citation
- [2014] KEHC 342 (KLR)
- Parties
- Plaintiff: Kennedy Otieno Nooh t/a Brilland Construction Ltd; Defendant: The Kenya Power & Lighting Company Limited
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 341 of 2010
- Procedural Posture
- Civil Suit / Application for Review and Reinstatement of Dismissed Suit
- Outcome
- Application for review allowed; suit reinstated; dismissal order set aside.
- Legal Topics
- Review of Orders, Reinstatement of Suit, Dismissal for Non Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Otieno Nooh t/a Brilland Construction Ltd
Plaintiff
The Kenya Power & Lighting Company Limited
Defendant
Procedural Posture
Civil Suit / Application for Review and Reinstatement of Dismissed Suit
Legal Issues
- 1 Whether the order dismissing the suit on 31st October, 2012 should be reviewed and set aside.
- 2 Whether the plaintiff/applicant was properly served with the dismissal order.
- 3 Whether the plaintiff/applicant took steps to prosecute the suit prior to dismissal.
Ratio Decidendi
The court found that the applicant was not served with the dismissal order and only became aware of it much later. The applicant had taken steps to prosecute the suit by filing a list of witnesses, indicating an intention to proceed. In the interest of justice, the court exercised its discretion to allow the application for review, set aside the dismissal order, and reinstated the suit for hearing and determination on its merits. The court emphasized that any future delay by the plaintiff in prosecuting the matter would not be tolerated and could result in dismissal with costs.
Court Disposition
Application for review allowed; suit reinstated; dismissal order set aside.
Orders
- The application dated 7th April, 2014 is allowed.
- The order of dismissal dated 31st October, 2012 is set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL SUIT NO. 341 OF 2010
KENNEDY OTIENO NOOH T/A BRILLAND CONSTRUCTION LTD……PLAINTIFF
VERSUS
THE KENYA POWER & LIGHTING COMPANY LIMITED………....….DEFENDANT
RULING
1. This is an application to review the order of 31st October, 2012- where the suit was dismissed- and reinstate the same under Order 45 r 1 of the Civil Procedure Rules and other enabling provisions thereof.
2. The application is supported by the affidavit of one Kennedy Otieno Nooh of the same date as the application.
3. There has been change of advocates. M/s Nyatundo & Company Advocates replaced Mr. Anthony Okuto & Company Advocates by their Notice of Change of Advocates dated 22nd day of November, 2012.
4. The replying affidavit, by one B.K. Langat, sets out the grounds of opposition to the applicant by defendant/Respondent.
5. The thrust of the Applicants case is as follows:-
That seeks review of the orders of 31st October, 2012 and 31st November, 2012, the existence of which he learnt on 1st April, 2014- one year and five months when he received a letter from the Defendant/Respondent Advocates, M/s Kibichiy and Co. Advocates.
The defendant/respondent did not serve the orders of 31st October, 2012 and therefore had no notice of responding dismissal prayed for by the defendant/respondent.
By filing in a list of witnesses, the Applicant/Plaintiff had taken concrete steps to prosecute his case.
6. The Defendant/Respondent’s grounds of opposition are listed as 5 and are dated 13th May, 2013.
7. I have read both applicant’s affidavit of support of their case, I have also read the Respondent’s grounds of opposition ad his supporting affidavit. I listened to the arguments by both counsels in support of their respect stand. I have formed my considered opinion that in the interest of justice, I allow the application dated 7th April, 2014 and order the reinstatement of the said suit for hearing and determination by the court on merit. Therefore the order of dismissal is hereby set-aside.
8. The plaintiff/Applicant to move with reasonable speed to prosecute his case. Any delays in future to move fast on the matter, the court will not hestitate to dismiss the suit again with costs to the plaintiff.
9. Order accordingly. No orders as to costs.
Ruling dated and delivered at KISII on the 2nd day of October, 2014.
C.B.NAGILLAH,
JUDGE.
In the presence of:-
Odhiambo Kanyangi holding brief for Nyatundo for Applicant
Bunde holding brief for Wetese for Respondent