[2012] KEHC 2116 (KLR)
The court found that the matter had been concluded and was only pending execution. The evidence provided by the plaintiff, including the decree and warrants of arrest in execution, demonstrated that the substantive issues had been determined. The only remaining step was execution of the decree. Therefore, the suit...
Source-derived case information.
- Citation
- [2012] KEHC 2116 (KLR)
- Parties
- Plaintiff: National Bank of Kenya Ltd; Defendant: Silas Kiptoo Cheburet
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 453 of 1994
- Procedural Posture
- Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Suit not dismissed; matter pending execution.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Execution of Decree, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Bank of Kenya Ltd
Plaintiff
Silas Kiptoo Cheburet
Defendant
Procedural Posture
Civil Case / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2.
- 2 Whether the matter has been concluded and is only pending execution.
Ratio Decidendi
The court found that the matter had been concluded and was only pending execution. The evidence provided by the plaintiff, including the decree and warrants of arrest in execution, demonstrated that the substantive issues had been determined. The only remaining step was execution of the decree. Therefore, the suit could not be dismissed for want of prosecution. The court directed the decree holder to move the court for execution within 60 days, with costs to be in the cause.
Court Disposition
Suit not dismissed; matter pending execution.
Orders
- The suit is not dismissed for want of prosecution.
- The decree holder is to move the court for execution within 60 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAKURU
Civil Case 453 of 1994
NATIONAL BANK OF KENYA LTD………………..PLAINTIFF
VERSUS
SILAS KIPTOO CHEBURET………………………DEFENDANT
RULING
This suit was filed in 1994 about 18 years ago. On 27/4/2012, the court moved under Order 17 Rule 2 and issued notice to the plaintiff to show cause why the suit cannot be dismissed for want of prosecution. The plaintiff’s counsel filed an affidavit opposing the dismissal for reasons that the matter was concluded and warrants of arrest in execution were issued and re-issued as evidenced by the annexures 1(a) and (b), the decree and warrants; that the file went missing despite enquiries as to its whereabouts. The counsel did not, however, attach the letters in which the whereabouts of the file was questioned. The respondent prays that the court should not dismiss the suit in the interests of justice and the court to find that it is concluded.
I have perused the file and some of the documents exhibited by the plaintiff. It seems that this matter had been concluded and it has been pending for execution. I make a finding to the effect that it is a concluded matter but is pending execution and it cannot therefore be dismissed. The Decree Holder should move the court to execute within the 60 days. Costs to be in the cause.
DATED and DELIVERED this 7th day of June, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Koech holding brief for Mr. Omingo for the plaintiff
N/A for the defendant
Kennedy – Court Clerk