[2022] KEHC 17249 (KLR)
The court found that the Plaintiff failed to take steps to prosecute the suit and the Notice of Motion, including failure to attend court despite being notified. The Plaintiff also failed to comply with Order 5 Rule 6 of the Civil Procedure Rules by not collecting and serving summons within thirty days of issue. The...
Source-derived case information.
- Citation
- [2022] KEHC 17249 (KLR)
- Parties
- Plaintiff: Daniel Mukavi Kithokoi; Defendant: National Housig Corporation; Defendant: Keysian Auctioneers
- Court
- High Court
- Court Station
- High Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Civil Case 28 of 2019
- Procedural Posture
- Civil Case / Ruling on Abatement and Dismissal for Non Prosecution
- Outcome
- Suit abated and Notice of Motion dismissed for non-attendance and want of prosecution. Each party to bear own costs.
- Judges
- SN Mutuku
- Legal Topics
- Abatement of Suit, Non Attendance, Service of Summons, Dismissal for Non Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mukavi Kithokoi
Plaintiff
National Housig Corporation
Defendant
Keysian Auctioneers
Defendant
Procedural Posture
Civil Case / Ruling on Abatement and Dismissal for Non Prosecution
Legal Issues
- 1 Whether the suit should abate for failure to serve summons within the prescribed period under Order 5 Rule 6 of the Civil Procedure Rules.
- 2 Whether the Notice of Motion dated December 13, 2019 should be dismissed for non-attendance and want of prosecution.
Ratio Decidendi
The court found that the Plaintiff failed to take steps to prosecute the suit and the Notice of Motion, including failure to attend court despite being notified. The Plaintiff also failed to comply with Order 5 Rule 6 of the Civil Procedure Rules by not collecting and serving summons within thirty days of issue. The court noted a consistent lack of interest by the Plaintiff in prosecuting the matter, and that the court had exercised patience by repeatedly adjourning the case and issuing notices. In the absence of any explanation or attendance by the Plaintiff or his counsel, the court held that the Notice of Motion should be dismissed for non-attendance and want of prosecution, and that...
Court Disposition
Suit abated and Notice of Motion dismissed for non-attendance and want of prosecution. Each party to bear own costs.
Orders
- The Notice of Motion dated December 13, 2019 is dismissed for non-attendance and want of prosecution.
- The Plaint dated December 13, 2019 is declared abated for failure to comply with Order 5 Rule 6 of the Civil Procedure Rules.
Full Case Text
Judgment text and source record
29 paragraphs
Kithokoi v National Housig Corporation & another (Civil Case 28 of 2019) [2022] KEHC 17249 (KLR) (1 November 2022) (Ruling)
Neutral citation: [2022] KEHC 17249 (KLR)
Republic of Kenya
In the High Court at Kajiado
Civil Case 28 of 2019
SN Mutuku, J
November 1, 2022
Between
Daniel Mukavi Kithokoi
Plaintiff
and
National Housig Corporation
1st Defendant
Keysian Auctioneers
2nd Defendant
Ruling
1. This matter came up for mention today, October 31, 2022, for giving directions. The Plaintiff/Applicant did not attend nor did his counsel. Mr Kairaria appeared for the Defendant/Respondent in compliance with the Notice dated October 26, 2022, served on the parties on the direction of the court. He applied to have the matter to be declared as having abated for failure to take out Summons and serve them on the Defendant within 30 days as required under Order 5 Rule 6 of the Civil Procedure Rules. I reserved my ruling on the matter to November 1, 2022.
2. I have taken time to read the record of the court file. The Plaint, dated December 13, 2019, was filed on December 16, 2019. In addition to the Plaint, the Plaintiff filed a Notice of Motion under Certificate of Urgency of the same date, December 13, 2019. Directions were given by this court (Mwita, J) on December 17, 2019 to the effect that the application be served on the Respondent for directions on February 4, 2020.
3. On February 4, 2020, Mr Otsyula for the Applicant attended court. There was no attendance by the Respondent or counsel. Mr Otsyula told the court that the Respondent had been served but the court found no evidence of service and directed that the Respondent be served. Another date, March 24, 2020 was given for directions.
4. There is no record of court proceedings from February 4, 2020, to December 7, 2020 when no party was present. It is in the public domain that due to Covid 19 court proceedings scaled down during the year 2020 from March to late that year. This court explain why the record is silent in the intervening period. On December 7, 2020, court directed that parties be served with a Notice to attend court on February 17, 2021. However, there is no record for that date. Court record reflects proceedings of March 5, 2021 when the Respondent was represented but there is no appearance for the Applicant or counsel. The matter was adjourned to July 13, 2021.
5. Court record does not reflect whether any Notice was served by the court to the parties. On July 13, 2021, no party attended the court. The matter was adjourned to- December 14, 2021. A Notice to that effect was issued by the court as the record shows but no party attended court. Again, the matter was adjourned to May 23, 2022.
6. It seems that no Notice was served on the parties and no one attended court on May 23, 2022 when the matter was placed before me for the first time. I directed parties be Notified to attend court on October 31, 2022. The Notice was issued dated October 26, 2022.
7. When I called the matter today, October 31, 2022, Mr Kairaria appeared for the Respondent/Defendant and made the application I have referred to in paragraph one above.
8. The history of this matter, as narrated here shows lack of interest on the part of the Plaintiff/Applicant to prosecute his Notice of Motion, given that it was brought under certificate of urgency.
9. Order 5 Rule 6 is clear that: Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue, failing which the suit shall abate.
10. Given the history in this matter, it is clear to me that the Plaintiff is not interested in prosecution his Plaint or his Notice of Motion filed herein. He has failed to attend court even with notification on the institution of the court. It is clear that this court has been very patient with the parties in this matter. I find that I have no reason to extend time to given directions in this matter given the lack of interest by the Plaintiff.
11. For this reason, I hereby dismiss the Notice of Motion dated December 13, 2019 for non-attendance of the Plaintiff to prosecute the same. It is also my considered view that the Plaint dated December 13, 2019 has abated for failure by the Plaintiff to comply with Order 5 Rule 6 of the Civil Procedure Rules. Let each party bear own costs.
12. Orders shall issue accordingly.
Dated, signed and delivered this 1stNovember, 2022. S. N. MUTUKUJUDGE1| Ruling in Kajiado High Court Civil Case No. 28 of 2019