[2014] KEHC 2445 (KLR)
The court found that the plaintiff had complied with the procedural requirements for discontinuance of the suit under Order 25 Rule 1 of the Civil Procedure Rules, as the suit had not been set down for hearing and notice of discontinuance was served. The court accepted the parties' out of court settlement and marked...
Source-derived case information.
- Citation
- [2014] KEHC 2445 (KLR)
- Parties
- Plaintiff: Nabea Academy Limited; Defendant: Kenya National Assurance Co. (2001) Ltd
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 156 of 2008
- Procedural Posture
- Civil Suit / Discontinuance Before Hearing Due to Out of Court Settlement
- Outcome
- Suit discontinued following out of court settlement; no order as to costs.
- Judges
- FM Njoroge
- Legal Topics
- Discontinuance of Suit, Out of Court Settlement, Injunctions, Statutory Power of Sale
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nabea Academy Limited
Plaintiff
Kenya National Assurance Co. (2001) Ltd
Defendant
Procedural Posture
Civil Suit / Discontinuance Before Hearing Due to Out of Court Settlement
Legal Issues
- 1 Whether the suit should be marked as settled following an out of court settlement between the parties.
- 2 Whether the plaintiff has complied with the requirements for discontinuance of a suit under Order 25 Rule 1 of the Civil Procedure Rules.
- 3 Whether any orders as to costs should be made.
Ratio Decidendi
The court found that the plaintiff had complied with the procedural requirements for discontinuance of the suit under Order 25 Rule 1 of the Civil Procedure Rules, as the suit had not been set down for hearing and notice of discontinuance was served. The court accepted the parties' out of court settlement and marked the suit as discontinued, with no order as to costs. The plaintiff is barred from returning the same suit to court. The court made no findings on the merits of the original claims or defences, as the matter was resolved by settlement and discontinuance prior to hearing.
Court Disposition
Suit discontinued following out of court settlement; no order as to costs.
Orders
- The suit is marked as discontinued.
- The plaintiff may not return the suit to court.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO.156 OF 2008
NABEA ACADEMY LIMITED........................................................................PLAINTIFF
VERSUS
KENYA NATIONAL ASSURANCE CO. (2001) LTD...............................DEFENDANT
J U D G E M E N T
The Plaintiff filed this suit on 28. 11. 2008 and in its plaint prayed for judgment against the Defendant as follows:-
(a) An order of injunction do issue restraining the Respondent, its employees, servants and/or agents from in any way or howsoever proceeding with the sale of the Applicant's school premises and plot known as L.R No. Ntima/Igoki/611 & 778 – Meru Municipality purportedly under Chargor's Statutory right of sale.
(b) A declaration that the plaintiff does not owe any money or obligation to the defendant.
(c) Costs of the suit and interest.
The law firm of C. B. Mwongela & Co, advocates, which firm was acting for the plaintiff filed an application to cease acting for the plaintiff dated 3. 4.2014. When the application was to be heard interpates, Mr. Nyenyire holding brief for Mr. Maganga for the Plaintiff informed the Court that Mr. Mwongela had by a Notice dated 26. 6.2014 withdrawn the application dated 3. 4.2014 and asked the Court to mark it as settled. I have seen this Notice. I, therefore, mark the application as settled with no order as to costs.
Mr. Nyenyiere then referred the Court to a letter written by the firm of C. B. Mwongela, Advocates, and dated 5. 6.2014. The letter addressed to the Deputy Registrar, High Court of Kenya, Meru States:
“Please refer to the captioned matter in which we act for the plaintiff and which is scheduled for mention on 2. 7.2014. Kindly note that the Plaintiff and the Defendant reached an out of Court settlement between themselves and the matter may now be marked as settled”.
The letter is copied to the firm of M/s Waweru Gatonye & Co. which represents the Defendant.
Mr. Nyenyire asked the Court to mark the suit as settled with parties bearing own costs.
From the Court records the parties were in Court on 4. 12. 2008 before the Hon. Justice Emukule, J. The next time one of them the plaintiff, appeared in Court for directions was on 28. 5.2014, five and a half years later. It is clear that this would have been a veritably proper suit where parties should have been required to show cause why it should not have been dismissed for want of prosecution. Be it as it may, the Plaintiff is seeking to have the suit marked as settled on the ground that the parties have reached a settlement. In other words, he seeks to wholly discontinue the suit against the sole Defendant.
Order 25 Rule 1 decrees:
“At any time before the setting down of the suit for hearing the plaintiff may be by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.”
This suit has not been set down for hearing.
I find that the Plaintiff has complied with the requirement regarding discontinuance of the suit in whole. This suit is therefore marked discontinued. The Plaintiff may not return the suit to Court. I make no finding as to costs.
It is so ordered.
Delivered in Open Court at Meru this 2nd day of July, 2014 in the presence of:
Cc Lilian/Daniel
Nyenyire h/b Maganga for Plaintiff
Firm of Waweru Gatonye for defendant Absent
P. M. NJOROGE
JUDGE