[2021] KEHC 12963 (KLR)
The court found that although notices of intended dismissal were drawn and addressed to the parties, there was no evidence that the plaintiff or his counsel received or acknowledged the notice. Only the Attorney General and the Director of Public Prosecutions acknowledged receipt. On the date of dismissal, only...
Source-derived case information.
- Citation
- [2021] KEHC 12963 (KLR)
- Parties
- Plaintiff: Mohamoud Ali Mohammed; Defendant: The Hon. Attorney General; Defendant: 2nd Defendant; Defendant: 3rd Defendant
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 177 of 2010
- Procedural Posture
- Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; dismissal order set aside; suit reinstated.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal of Suit, Reinstatement of Suit, Judicial Discretion, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamoud Ali Mohammed
Plaintiff
The Hon. Attorney General
Defendant
2nd Defendant
Defendant
3rd Defendant
Defendant
Procedural Posture
Miscellaneous Application / Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the dismissal of the suit under Order 17 Rule 2 of the Civil Procedure Rules should be set aside.
- 2 Whether sufficient notice of dismissal was given to the plaintiff as required by law.
- 3 Whether the delay in prosecuting the suit was inordinate and inexcusable.
Ratio Decidendi
The court found that although notices of intended dismissal were drawn and addressed to the parties, there was no evidence that the plaintiff or his counsel received or acknowledged the notice. Only the Attorney General and the Director of Public Prosecutions acknowledged receipt. On the date of dismissal, only counsel for the 2nd and 3rd defendants appeared, with no appearance for the plaintiff. The court emphasized that the practice is to sustain suits where justice so requires, especially where the delay is not inordinate or inexcusable. Since the plaintiff was not properly notified as required by Order 17 Rule 2, the dismissal was set aside and the suit reinstated. The court directed...
Court Disposition
Application allowed; dismissal order set aside; suit reinstated.
Orders
- The application dated 16th January, 2020 is allowed as drawn.
- The dismissal order of 15th February, 2019 is set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH CURT OF KENYA AT NAIROBI
CIVIL CASE NO. 177 OF 2010
MOHAMOUD ALI MOHAMMED................PLAINTIFF
VERSUS
THE HON. ATTORNEY GENERAL
& 2 OTHERS..............................................DEFENDANTS
RULING
The plaintiff’s suit was dismissed on 15th February, 2019 under Order 17 Rule 2 of the Civil Procedure Rules. Aggrieved by the said order he moved the court by way of Notice of Motion dated 16th January 2020, under Sections 1A,1B and 3A of the Civil Procedure Act and Article 159(2) of the Constitution for the substantive orders that the dismissal order be set aside and the suit reinstated for hearing on merit.
The grounds in support of the motion are set out on the face of the application and the supporting affidavit of Andrew Wandabwa, Advocate, sworn on 16th January, 2020. The application is opposed by the 2nd and 3rd defendants who filed replying affidavits through Karen Muthee, Advocate. Subsequently, parties filed submissions and cited some authorities which I have on record.
Order 17 Rule 2 of the Civil Procedure rules provides as follows,
“2. (1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”
The application of the above provision calls for the discretion of the court. See Maina Karanja vs. Maina Karanja (2014) eKLR. Dismissal, therefore, is not mandatory and the rule can be said to be permissive. Courts have been called upon to address the subject of service of a notice and the giving of a notice as contemplated by this provision. In the case of Fran Investment Limited vs. G4s Security Services Limited (2015) e KLRGikonyo J stated as follows,
“[9] Order 17 Rule 2 (1) of the Civil Procedure Rules does not require service of notice; it uses the word ‘’give notice’’. The court may give notice of dismissal through its official website or through the cause-list. And those mediums will constitute sufficient notice for purposes of Order 17 Rule 2 (1) of the Civil Procedure Rules. But nothing precludes the court from serving the notice as per Order 5 of the Civil Procedure Rules.”
The other considerations to be given effect is whether or not the delay in the prosecution of the case has been inordinate and inexcusable. Such considerations however, will come into play after it is confirmed that the court had given notice in writing to the parties.
I have perused the court file and noted that the court indeed drew notices under Order 17 Rule 2 aforesaid. I have confirmed that the notices were dated 4th February, 2019 and addressed to counsel and the parties herein. There is an acknowledgement by the office of the Director of Public Prosecutions dated 6th February, 2019. There is also an acknowledgement by the Office of the Attorney General dated 5th February, 2019. However, there is no acknowledgement by the plaintiff or his counsel of the said notice.
It can be concluded therefore that no notice was given to the plaintiff. Indeed on the date the suit was dismissed, only counsel for the 2nd and 3rd defendants appeared while there was no appearance for the plaintiff. It is the practise of courts to endeavour to sustain the suits brought before them where the ends of justice so require rather than dismissing the same. The record before me justifies the sustenance of the suit notwithstanding the slight delay on the part of the plaintiff which, going by the record, is just about one year and three months from the last time the case was before the court.
The application dated 16th January, 2020 is therefore allowed as drawn. The parties shall endeavour to comply with Order 11 of the Civil Procedure Rules within 60 days from the date of this ruling, and thereafter have the suit prosecuted within 60 days from the date it is certified ready for hearing, making a total of 120 days to dispose of this matter. The costs shall be in the cause.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH DAY OF MAY, 2021.
A. MBOGHOLI MSAGHA
JUDGE
In the presence of:
Mr. Otieno for Mr. Wandabwa Plaintiff
Ms. Kamau for 2nd & 3rd the Defendants