[2018] KEHC 10138 (KLR)
The court found that the suit had been dormant for over one year and that there was an error in the previous ruling which failed to recognize the prayer for dismissal. In the interest of justice and to correct the record, the court acknowledged the prayer for dismissal and, applying Order 17 Rule 2 of the Civil...
Source-derived case information.
- Citation
- [2018] KEHC 10138 (KLR)
- Parties
- Plaintiff: Kenya Planters Cooperative Union Ltd; Defendant: Kenya Railways Corporation; Defendant: Commissioner of Lands
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 350 of 2011
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Dismissal for Want of Prosecution and Release of Deposited Funds
- Outcome
- Application allowed; suit dismissed for want of prosecution; release of deposited funds ordered.
- Judges
- GL Nzioka
- Legal Topics
- Dismissal for Want of Prosecution, Release of Deposit, Court Orders Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Planters Cooperative Union Ltd
Plaintiff
Kenya Railways Corporation
Defendant
Commissioner of Lands
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Dismissal for Want of Prosecution and Release of Deposited Funds
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Act.
- 2 Whether the sum of Kshs 3,130,000 deposited in court should be released to the 1st Defendant/Applicant.
Ratio Decidendi
The court found that the suit had been dormant for over one year and that there was an error in the previous ruling which failed to recognize the prayer for dismissal. In the interest of justice and to correct the record, the court acknowledged the prayer for dismissal and, applying Order 17 Rule 2 of the Civil Procedure Rules, ordered the suit dismissed for want of prosecution. Consequently, the court also ordered the release of the sum of Kshs 3,130,000 deposited in court, together with all accrued interest, to the 1st Defendant/Applicant. The absence of opposition from the Plaintiff/Respondent and the 2nd Defendant further supported the grant of the orders sought.
Court Disposition
Application allowed; suit dismissed for want of prosecution; release of deposited funds ordered.
Orders
- The suit is dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- The sum of Kshs 3,130,000 deposited in court plus all accrued interest up to the date of liquidating the account shall be paid to the 1st Defendant/Applicant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & ADMIRALTY DIVISION
HCCC NO. 350 OF 2011
KENYA PLANTERS COOPERATIVE UNION LTD...PLAINTIFF/RESPONDENT
VERSUS
KENYA RAILWAYS CORPORATION...................1ST DEFENDANT/APPLICANT
COMMISSIONER OF LANDS...............................2ND DEFENDANT/APPLICANT
RULING
1. This Ruling is further to the Ruling delivered herein on 19th June 2018 on the Notice of Motion dated 16th October 2017. In the said Application, the 1st Defendant/Applicant was seeking for various prayers, namely, the dismissal of the suit for want of prosecution and an order that, the Court do order for release of the sum of Kshs. 3,130,000 deposited pursuant to the Court’s ruling and/or orders of 30th January 2012 and 7th May 2012.
2. In the Ruling I delivered on 19th June 2018, I made an observation at paragraph 8 thereof that, the Applicant had not sought for the dismissal of the suit. Apparently, that is an error on the face of the record, as there is a prayer for the same in the Application. In the interest of Justice and to correct the error, I hereby recognize the prayer for the dismissal of the suit. I therefore order that, in view of the fact that, it is not contested that, the suit has been dormant for over one year, then the suit can and shall be ordered dismissed under the provisions of order 17 Rules (2) of the Civil Procedure Act and hereby order the suit to be marked as dismissed for want of prosecution as prayed.
3. It therefore follows that, the sum of Kshs 3,130,000 deposited herein plus all the interest accruing thereto up to the date of liquidating the Account, shall be and is hereby ordered payable to the 1st Defendant/Applicant. The 2nd Defendant too were served but did not come to Court. I am not sure they would contest the prayer for dismissal of the suit.
4. In conclusion, I allow the Notice of Motion Application dated 16th October 2017 in terms of prayer 1, 2 and 3.
5. It is so ordered.
Dated, delivered and signed on this 3rd day of July 2018 in an open Court at Nairobi.
G.L. NZIOKA
JUDGE
In the presence of;
No appearance for the Plaintiff/Respondent
Mr. Ochieng for Mr. Ngwara for the 1st Defendant/Applicant
No appearance for the 2nd Defendant/Applicant
Fred ……………………………….Court Assistant