[2011] KEHC 1734 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit since its filing in 2007, including failing to issue summons. The court held that a plaint without issuance of summons is not alive and that the suit was effectively dead. The absence of any action by the plaintiff and the failure...
Source-derived case information.
- Citation
- [2011] KEHC 1734 (KLR)
- Parties
- Plaintiff: Meshack Okoth Obura practicing as Meshack Okoth Obura & Co. Advocates; Defendant: Industrial & Commercial Development Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 685 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution with costs to the defendant
- Judges
- KH Rawal
- Legal Topics
- Dismissal for Want of Prosecution, Failure to Prosecute, Issuance of Summons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Meshack Okoth Obura practicing as Meshack Okoth Obura & Co. Advocates
Plaintiff
Industrial & Commercial Development Corporation
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inaction by the plaintiff.
- 2 Whether failure to issue summons renders the suit dead.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit since its filing in 2007, including failing to issue summons. The court held that a plaint without issuance of summons is not alive and that the suit was effectively dead. The absence of any action by the plaintiff and the failure to attend the hearing of the application for dismissal further justified the dismissal. The court exercised its discretion to dismiss the suit for want of prosecution, finding no possibility of revival of the suit.
Court Disposition
suit dismissed for want of prosecution with costs to the defendant
Orders
- The suit is dismissed for want of prosecution.
- The plaintiff shall pay the costs of the suit to the defendant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
NAIROBI
CIVIL SUIT NO. 685 OF 2007
MESHACK OKOTH OBURA
practicing as MESHAK OKOTH OBURA & CO. ADVOCATES..................................................................PLAINTIFF
VERSUS
INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORATION.........................................................DEFENDANT
RULING
Before the court is Notice of Motion dated 17th September, 2010, premised under Order XVI Rules 5 and 6 Order L Rule 1 of the Civil Procedure Rules (now repealed) and all other enabling provisions of the law. It seeks the prayers that the suit of the Plaintiff against the Defendant be dismissed for want of prosecution.
The application is supported by the grounds set forth on the application and the supporting affidavit of Advocate Marion Karanja sworn on 17th September, 2010.
I shall mention that the application by the Plaintiff seeking prayer for issuance of fresh Summon was dismissed vide Ruling delivered on 13th May, 2011.
The application before the court was heard ex-parte, the Plaintiff having failed to appear even after the due notice of hearing was effected.
The Plaint was filed on 28th September, 2007 along with an application for interim orders which was granted. Thenceforth, the Plaintiff has not taken any action on the suit. The Summons were also not taken out. The suit is thus a dead suit without any possibility of its revival.
The application has inter alia raised the said issue and I agree that the Plaint without issuance of Summons is not alive.
I thus allow the application and dismiss the suit with costs.
Orders accordingly.
Dated, signed and delivered at Nairobi this 1st day ofJuly, 2011
K. H. RAWAL
JUDGE
1. 7.2011