[2004] KEHC 697 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL DIVISION, MILIMANI

CIVIL CASE NO. 59 OF 1999

KILIMANJARO DISTILLERS LTD…………………..PLAINTIFF

VERSUS

SAFEPAK LIMITED………………………………….DEFENDANT

R U L I N G

This is an application (by notice of motion dated 26th August, 2004) under Order 16, Rule 5(d) of the Civil Procedure Rules (the Rules) for dismissal of the suit for nonprosecution. Under that paragraph, if, within three months after the adjournment of the suit generally, the plaintiff, or the court on its own motion on notice to the parties, does not set down the suit for hearing, the defendant may either set the suit down for hearing or apply for its dismissal. The Defendant herein has chosen the latter course. But in the circumstances of this case could the Defendant properly bring this application?

This suit was part-heard by the Hon. Ondeyo, J. in that she heard all the witnesses and ordered that submissions be on 31st October, 2003. Unfortunately the Judge retired before completing the case. On the said date the matter was mentioned before Hon. Njagi, J. who ordered that the proceedings hither to be typed and availed to counsel to assist them to prepare their submissions. The Judge fixed the matter for further mention on 27th November, 2003. On that day the matter was mentioned before Hon. Mutungi, J. who ordered that the matter be heard de novo. He further ordered that a hearing date be fixed by the parties in the new year. According to learned counsel for the Defendant, the effect of this order of 27th November, 2003 was to adjourn the suit generally. But according to learned counsel for the Plaintiff, the effect of that order was not to adjourn the suit generally. In his view, there could be adjournment generally of the suit on 27th November, 2003 only if the suit was coming up for hearing on that day, and it was not. It was coming up for further mention in order for directions to be given on how to proceed in the circumstances. Dismissal of the suit for want of prosecution, further argued learned counsel for the Plaintiff, could only be under Rule 6 of the same Order 16, which provides that in any case not otherwise provided for in which no application is made or step taken for a period of three years by either party with a view to proceeding with the suit the court may order the suit to be dismissed, and three years have not yet lapsed since 27th November, 2003.

The definition of the term“adjournment” in “A DICTIONARY OF LAW”, 4th Edition, by Elizabeth A. Martin, referred to by learned counsel for the Plaintiff is useful. That definition is –

“adjournment” (in court procedure.) The postponement or suspension of the hearing of a case until a future date. The hearing may be adjourned to a fixed date or sine die (without day), i.e. for an indefinite period…..”

I hold that for purposes of Order 16, Rule 5(d) of the Rules the suit must have come up for hearing and then an order made adjourning the suit generally. If the suit came up for a purpose other than hearing, then paragraph (d) of Rule 5 aforesaid cannot be available to a defendant. In the present case the suit came up for further mention, not hearing, on 27th November, 2003. It was to be further mentioned in order for directions to be given on how to proceed in view of its part-heard status before a judge who was no longer available to complete the case. Directions were indeed given that hearing do start de novo. In the circumstances of this case, there would have to be no activity towards proceeding with the case for a period of three years from 27th November, 2003 to render the suit dismissable under Rule 6 of Order 16. There was no adjournment of the suit generally on 27th November, 2003 to enable the Defendant to apply for its dismissal under Rule 5(d) of Order 16. The application is misconceived, and I so hold. It is hereby dismissed with costs to the Plaintiff. Order accordingly.

DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF NOVEMBER, 2004.

H.P.G. WAWERU

JUDGE

DELIVERED THIS…………….DAY OF NOVEMBER, 2004.