[2004] KEHC 1429 (KLR)
The court found that although the defendant's counsel submitted that no part of the plaintiff's claim was admitted, the defence on record indicated an admission that the defendant obtained some financing from the plaintiff and did not disclose how it was repaid. Therefore, the strict requirements for dismissal under...
Source-derived case information.
- Citation
- [2004] KEHC 1429 (KLR)
- Parties
- Plaintiff: National Bank of Kenya Limited; Defendant: Paul Kibor Kemboi
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 142 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Non Attendance
- Outcome
- Plaintiff's suit not dismissed; costs of the day awarded to the defendant.
- Legal Topics
- Dismissal for Non Attendance, Costs Award, Admissions in Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Bank of Kenya Limited
Plaintiff
Paul Kibor Kemboi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Non Attendance
Legal Issues
- 1 Whether the plaintiff's suit should be dismissed for non-attendance under Order 9B Rule 4(1) of the Civil Procedure Rules.
- 2 Whether the defendant's pleadings amount to an admission of part of the plaintiff's claim.
- 3 Whether costs should be awarded to the defendant for the hearing date.
Ratio Decidendi
The court found that although the defendant's counsel submitted that no part of the plaintiff's claim was admitted, the defence on record indicated an admission that the defendant obtained some financing from the plaintiff and did not disclose how it was repaid. Therefore, the strict requirements for dismissal under Order 9B Rule 4(1) were not met. The court declined to dismiss the suit but awarded costs to the defendant for the hearing date due to the plaintiff's and their advocate's absence.
Court Disposition
Plaintiff's suit not dismissed; costs of the day awarded to the defendant.
Orders
- The application for dismissal of the plaintiff's suit is declined.
- Costs of the hearing on 6th December 2003 awarded to the defendant against the plaintiff.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CIVIL CASE NO. 142 OF 1998
NATIONAL BANK OF KENYA LIMITED ………………..…………..………..PLAINTIFF
-VERSUSPAUL
KIBOR KEMBOI …………..…….…………..………….…………..…. DEFENDANT
RULING
This case came for hearing on 6th December 2003. While the advocate for the defendant was present, the advocate for the plaintiff and the plaintiff were absent. It is clear from the records in the file that the case was fixed for hearing by the plaintiff’s advocate at the court registry in the absence of the defendant. Therefore there appears to be no justifiable reason why the plaintiff and their advocate did not appear on the date of hearing.
Due to the non-attendance of the plaintiff and their advocate, counsel for the defendant Mr. Ngigi asked the court to dismiss the case of the plaintiff under Order 9B Rule 4 (1) Civil Procedure Rules. I have perused the Order and rule in question and observe that the court is only allowed to dismiss the plaintiff’s suit if the defendant does not admit any part of the claim. Though the defendant’s counsel submitted that the defendant did not admit any part of the claim, the defence filed does not support that position. There is an admission that the defendant obtained some financing from the plaintiff and no disclosure on how it was repaid. In view of this therefore, I will not dismiss the plaintiff’s suit. I will however, award costs of defendant against the plaintiff for the attendance for the hearing on 6th December, 2003. It is so ordered.
Dated and Delivered at Eldoret this 4th Day of February, 2004.
………………………….
George Dulu,
Judge
Ruling read in the presence of Mr. Omboto for Ngigi.
………………….
George Dulu,
Judge